Legal decision-making, often called legal custody in other jurisdictions, refers to the parents’ authority to make certain types of important decisions for their children. Examples of major legal decisions include:
• Educational decisions
• Religious decisions
• Non-emergency medical decisions*
*Ordinarily, emergency medical decisions are exempt and may be made by either parent during parenting time.
Best Interest Factors
Like parenting time, legal decision-making is awarded based on the statutory factors enumerated in A.R.S. § 25-403(A):
1. The past, present and potential future relationship between the parent and the child.
2. 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.
3. The child’s adjustment to home, school and community.
4. If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time.
5. The mental and physical health of all individuals involved.
6. 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.
7. 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.
8. Whether there has been domestic violence or child abuse pursuant to section 25-403.03.
9. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time.
10. Whether a parent has complied with chapter 3, article 5 of this title.
11. Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02.
Collectively, these factors are commonly referred to as the best interest factors. Family courts must make specific written findings for each of these factors in child custody cases. The family court has discretion to order joint decision-making, sole decision-making, or a hybrid arrangement where a parent might have final say or sole for a specific type or types of decisions.
Joint Legal Decision-Making
Joint legal decision-making gives both parents equal rights and authority to participate in the decision-making process. It requires parents to confer and agree before making any major legal decisions for their children. Unfortunately, parents do not always agree and this can lead to additional litigation if one parent unilaterally makes a decision or when there is an impasse where neither parent relents his or her position. Family courts do not have authority to make a particular decision for parents who disagree, so the only option sometimes is to request a modification of decision-making to enable one parent to make the decision.
This type of decision-making is in quotes because it is sometimes called by other names. Essentially, it gives one parent the authority to make a final decision when parents who otherwise share joint decision-making cannot agree. Although this arrangement gives one parent final say, it is not sole decision-making and should not be treated that way. Final say still requires parents to confer and discuss legal decisions in good faith before any decision is made. If a parent with final say abuses his or her authority, it may be grounds to modify legal decision-making.
Often referred to as sole custody, sole decision-making gives one parent authority to make legal decisions for the children without consulting the other parent. Sole decision-making is increasingly rare, but may be appropriate in cases involving a significant history of domestic violence or substance abuse. Sole decision-making also can be awarded if one parent is unreasonable, unresponsive, or uncooperative.
Modification of Decision-Making
Legal decision-making can be modified when there is a substantial and continuing change to material circumstances. This basically means that when there is an ongoing change to circumstances important to the decision-making arrangement, a parent may be eligible to modify. However, A.R.S. § 25-411 does impose some additional restrictions. For example, parents ordinarily must wait at least one year from the date their existing decision-making order was entered before filing to modify. Exceptions may apply to enable earlier modification whenever a parent is significantly non-compliant with an order or whenever the current order physically, mentally, or emotionally endangers the child.
Contact our child custody attorneys if you need more information or for a free consultation to discuss modification of decision-making or any other family law issue.