418 P.3d 1045 (Ct. App. 2018)

In Nicaise v. Sundaram, the Arizona Court of Appeals held that while family courts can award legal decision-making based on decisions parents are likely to make, the court cannot make the decision for the parents when the parents cannot agree. 

Unmarried, both parents petitioned to establish paternity, legal decision-making, parenting time and child support. From the beginning, the family court expressed concerns about the parents’ ability to cooperate and co-parent, but nevertheless ordered joint legal decision-making on a temporary basis. It also ordered Father’s parenting time to be limited to once-per-week supervised visits to expand once Father completed a prescribed psychiatric evaluation.

Subsequently, the trial court modified the decision-making order to award Mother sole legal decision-making authority for medical decisions.

The parents engaged in constant conflict, especially concerning the child’s developmental condition. Multiple doctors diagnosed the child with autism and recommended treatments, though Mother disagreed and retained an expert witness to support her position.

The parents also disagreed about the child’s education. Mother enrolled the child in three different preschools before ultimately deciding to homeschool the child. Conversely, Father wished for the child to attend a public school and retained an expert witness to support his position.

When the case finally made it to trial, the trial court entered a 58-page minute entry detailing its findings. Summarily, it found that both parties behaved unreasonably during the litigation, though it awarded final say decision-making authority to Father with respect to the child’s medical decisions. Other legal decisions were to be made jointly. Because the parties could not agree on school choice, the trial court ruled in favor of public school enrollment.

On appeal, the Court of Appeals affirmed the trial court’s decision-making and parenting time awards. It analyzed “final say” as legally akin to sole decision-making, rather than joint decision-making.

Significantly, the Court of Appeals vacated the trial court’s school choice. It reasoned that there is no statutory authority to enable a family court to make substantive legal decisions for parents who are unable to agree. It further directed courts to choose one parent to decide issues whenever the parents cannot agree.

Finally, the appellate court affirmed the trial court’s award of attorney’s fees to Father. Mother argued that Father should not be awarded fees because the trial court found he behaved unreasonably during litigation, pursuant to A.R.S. § 25-324. The Court of Appeals acknowledged this finding but ruled that unreasonableness does not preclude an award of attorney’s fees, it is merely one of the factors the trial court must consider when fees are requested.