What other jurisdictions often call “legal custody” is referred to as legal decision-making in Arizona. It is the component of child custody that relates to a parent’s legal authority to make certain types of decisions for his or her children. Examples of “major legal decisions” include educational decisions, religious decisions, and non-emergency medical decisions. It typically does not affect the right to enroll a child in extracurricular activities or other types of non-legal decisions. Those decisions usually are delegated in a parenting plan.
Legal decision-making is usually, but not always, initially determined at the same time as parenting time—the physical custody component of child custody in Arizona. While both legal decision-making and parenting time are awarded according to statutory factors commonly referred to by judges and child custody attorneys as the best interest factors, the two are independent and decision-making does not affect parenting time.
Arizona’s Best Interest Factors
The factors family courts must consider when deciding legal decision-making (and parenting time) are enumerated in A.R.S. § 25-403(A), and included below for convenience:
- The past, present and potential future relationship between the parent and the child.
- The interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings and any other person who may significantly affect the child’s best interest.
- The child’s adjustment to home, school and community.
- If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time.
- The mental and physical health of all individuals involved.
- Which parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent. This paragraph does not apply if the court determines that a parent is acting in good faith to protect the child from witnessing an act of domestic violence or being a victim of domestic violence or child abuse.
- Whether one parent intentionally misled the court to cause an unnecessary delay, to increase the cost of litigation or to persuade the court to give a legal decision-making or a parenting time preference to that parent.
- Whether there has been domestic violence or child abuse pursuant to section 25-403.03.
- The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time.
- Whether a parent has complied with chapter 3, article 5 of this title.
- Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02.
Although Arizona family law judges have discretion to award several variations of legal decision-making arrangements, their decision must be supported by specific findings with regard to each factor enumerated above to explain how each affects the best interests of the children in the case.
Joint Legal Decision-Making
The starting point for most child custody cases is joint legal decision-making. This gives both parents equal rights to participate in the decision-making process. But it also means that neither parent can make legal decisions without the other parent’s consent. This can be a regular source of conflict because it requires both parents to effectively communicate and coparent before making any legal decisions for their children and the practicality of joint legal decision-making depends on the parents’ ability to do so. If there is an impasse and the parents cannot agree to a particular decision or category of decisions, the parents must ask the family court to modify decision-making to give one parent the authority to make whatever decisions the parents cannot make together because family courts do not have the authority to insert themselves into the shoes of the parents and make legal decisions, even to break a tie.
Sole Legal Decision-Making
Commonly referred to as “sole custody,” sole legal decision-making gives one parent exclusive authority to make all legal decisions for his or her children. Sole decision-making is usually reserved for cases involving domestic violence between the parties or substance abuse by a parent. Though less common, a parent also may be awarded sole legal decision-making if the other parent historically has been unable to effectively or timely communicate. However, sole decision-making alone does not confer any additional parental rights, superior parenting time, or the right to relocate the child.
Joint Legal Decision-Making with Final Say
Although technically a subtype of joint legal decision-making, we believe final say is sufficiently distinct and important to be discussed as its own category. Arizona family courts use final say to give one parent the authority to make the ultimate decision if parents subject to joint legal decision-making cannot agree regarding a particular decision. It functions as a hybrid between joint legal decision-making and sole legal decision-making. So much so that the Arizona Supreme Court published an opinion recently to clarify whether final say should be considered joint or sole. The Supreme Court held that final say is a variation of joint legal decision-making and as such, it requires the same good faith consultation and cooperation that joint legal decision-making requires. In other words, a parent with final say still must confer with the other parent before making any legal decision. If the parents disagree, the parent with final say can make the decision. If a parent with final say abuses that authority, the other parent can ask the court to revoke the final say or to be awarded final say or even sole legal decision-making authority.
Modification of Legal Decision-Making in Arizona
Pursuant to A.R.S. § 25-411, legal decision-making can be modified. A parent can modify legal decision-making at any time if circumstances constitute an emergency. Arizona family courts define “emergency” as any situation that would cause irreparable harm if the court did not intervene. This is a difficult burden of proof intended to be reserved only for the most serious situations. Parents also can modify at any time if there is evidence of domestic violence or child abuse that occurred after a joint legal decision-making order was entered. Modifications based on one parent’s failure to comply with a decision-making order typically must wait at least six months after the order was entered and all other modifications must wait at least one year after the order was entered.