UPDATED BY SUPREME COURT DECISION JANUARY 17, 2019:

In Nicaise v. Sundaram, the Arizona Supreme Court affirmed the family court’s award of joint legal decision-making with “final say” and held that, contrary to the Court of Appeals opinion, this designation does not confer the same authority as sole legal decision-making.

Briefly, this case involved unmarried parents who both petitioned the family court to establish legal decision-making, parenting time, and child support. After contentious litigation that included allegations of domestic violence and child abuse, the family court ordered the parents to share joint legal decision-making, but gave father “final say” over medical decisions.

Joint legal decision-making means the parents share equal rights and must agree before making any non-emergency legal decisions for their children. Final say is a concept commonly used by the Arizona family courts to give one parent the ability to make the decision whenever the parties cannot agree.

Historically, judges and attorneys have considered this arrangement to be functionally equivalent to joint legal decision-making, in that it required the parents to consult before any non-emergency decisions are made. If the parties cannot agree, final say enables the designated parent to “break the tie” and ultimately make the decision. Critically, a parent with final say cannot preemptively make decisions without consulting with the other parent. Final say was characterized as tie-breaking authority, unintended to confer any other rights to one parent.

But the Court of Appeals disagreed and interpreted final say to be “in reality, an award of sole legal decision-making … as a matter of law.” Unlike joint legal decision-making, sole legal decision-making entitles one parent to unilaterally make legal decisions without consultation with or any input from the other parent.

The Court of Appeals relied on A.R.S. § 25-401(2) which provides that joint legal decision-making “means both parents share decision-making and neither parent’s rights or responsibilities are superior except with respect to specified decisions as set forth … in the final judgment or order.” From this the Court of Appeals concluded that because final say necessarily gives superior rights to one parent, it cannot be “joint” under the statute.

The Arizona Supreme Court vacated this part of the appellate opinion and held that family courts do have authority to order final say and that these orders do not convert to sole legal decision-making. This reinstated the prevailing interpretation that final say functions as joint legal decision-making, meaning parents still must consult in good faith before any non-emergency decisions are made. If parents disagree after consultation, a parent with final say may exercise that authority to make the decision.


Court of Appeals Opinion

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.