Overview
Arizona doesn't use the term "custody" anymore. Instead, it uses the term “legal decision-making” to refer to what other jurisdictions may call legal custody or parental responsibilities. It is the component of child custody that defines a parent’s legal authority to make certain types of major legal decisions for their children. Unfortunately, this is really where the clarity ends and the ambiguity begins. Because what constitutes a legal decision is not well-defined and this often leads to disputes between parents. The best definition we have comes from A.R.S. § 25-401 which states, “‘[l]egal decision-making’ means the legal right and responsibility to make all nonemergency legal decisions for a child including those regarding education, health care, religious training and personal care decisions.”
Educational Decisions
School Choice
One of the most important major legal decisions for many parents, especially parents with young children, is where their children will attend school. By default, this decision should always be treated as one subject to your parenting plan’s legal decision-making orders. In cases where parents share joint legal decision-making, it means both parents will need to agree before the children can be enrolled in a particular school. This is not limited to initial school enrollment. It also applies when parents wish to change the children’s school.
Parents should note that many judges are reluctant to consider preschool enrollment as an educational decision. We have litigated many cases where the parties argued over whether preschool should be considered a school and therefore subject to joint legal decision-making or childcare which, as detailed below, generally is not considered to be a legal decision.
Curriculum Decisions, IEPs
Another important subcategory of educational decisions are those that determine how the children will progress academically. There are many types of decisions that fall under this umbrella, including but not limited to: start dates for kindergarten, testing for and participation in gifted or individualized education programs (“IEPs”), elective course selection, etc.
School Records
Here, we change direction a little bit. Access to school records is not a legal decision. This means that even when one parent has sole legal decision-making authority, both parents have equal access to school records and documents pursuant to A.R.S. § 25-403.06.
Education-Adjacent Decisions
Extracurricular Activities
Enrollment and participation in extracurricular activities like sports or clubs generally are not considered to be legal decisions subject to the legal decision-making orders. Instead, extracurricular activities usually are addressed elsewhere in the parenting plan. Most judges include generic orders that allow either parent to enroll the children in any extracurricular activity so long as the activity does not affect the other parent’s parenting time. Typically, the costs of extracurricular activities are divided between the parents proportionately according to their incomes when both parents agree to an activity. Otherwise, the enrolling parent is exclusively responsible. This frequently leads to one parent withholding consent for extracurricular activities unless the other parent agrees to pay all of the associated costs.
Childcare
This often surprises parents, but childcare (and choosing a provider)is not usually considered to be a legal decision. Unless the family court specifically orders otherwise, parents are allowed to use any childcare provider during their parenting time. By default, there is not even any requirement that the parents share the childcare provider’s information with the other parent. This often leads to conflict between parents when one parent understandably wants assurances that the other parent’s childcare provider is safe and qualified.
Tutoring
In our experience, tutoring is typically treated like an extracurricular activity. By default, there really is nothing that requires the other parent to consent to tutoring or to pay a share of its cost. So, just like extracurricular activity participation, this is something that you may want to be addressed more specifically in your parenting plan.
Medical Decisions
Non-Emergency Medical Decisions
All non-emergency medical decisions including but not limited to choosing or changing health care providers, seeking diagnosis, or authorizing treatment should be considered major legal decisions that invoke the legal decision-making section of your parenting plan. Although the courts use the term “medical,” it is meant more broadly to include dental and orthodontic care, mental health, and chiropractic or holistic alternatives.
Emergency Medical Decisions
Emergency medical decisions may be made by the parent who is caring for the children when the emergency occurs. Most judges will provide additional orders to define when the emergency ends for purposes of legal decision-making and for notifying the other parent.
Medical Records
Just like education records, both parents have equal access to medical records regardless of the legal decision-making orders absent a court order to the contrary. This is a statutory right created by A.R.S. § 25-403.06.
Religious Decisions
Although it is considered a legal decision, most modern parenting plans give each parent the right to raise their children in the religious faith of their choosing. Any provision in a parenting plan concerning religion must be careful not to impose on the First Amendment principle of ecclesiastical abstention.
Personal Care Decisions
The final category of major legal decisions is frankly not talked about enough and, as a result, is the most ambiguous and least well-defined. The statutory definition simply refers to this category as “personal care decisions.” This is pretty generic and, so far, there have not been any published court opinions specifically interpreting or defining what this means. From experience, we can offer some examples of personal are decisions that have been treated as legal decisions and some that have not.
Driver's License, Passports
In previous cases, judges typically consider these to be decisions that are subject to the legal decision-making orders. That determination makes sense as the Arizona Department of Transportation and the United States Department of State require both parents’ signature when the parents share joint custody or joint legal decision-making, as it is called in Arizona.
Hair Dye or Hair Style
We have seen parents contest whether hair coloring or hair style are legal decisions. The answer has mostly been no. But, because we are unaware of any mandatory authority (statute or published case) that addresses this question, it is something that would be left to the individual judge’s discretion. As another example, Pima County conciliators sometimes include language that characterizes major hair cuts as a legal decision in the documents parents sign after reaching legal decision-making agreements at ADR.
Tattoos, Body Piercings
Tattoos and body piercings are similarly discretionary, but have yielded different results. Many judges seem to be persuaded that the permanence or semi-permanence of these decisions may invoke legal decision-making authority. Like driver license/passports, there’s also a statute that establishes a minimum age for tattoos and piercing without parental consent.
Routine Decisions Concerning the Child's Care
This may sound synonymous with or at least similar to “personal care decisions,” but they are treated very differently. The authority to make routine decisions concerning the child’s care is explicitly assigned to the parent who is exercising parenting time pursuant to A.R.S. § 25-401(5). Believe it or not, there is no further definition of what constitutes a routine decision. In our experience, this has included things like curfews, chores, diet, (reasonable) discipline, allowance, screen time, and any other non-legal aspects of raising children.
Establishing Legal Decision-Making
Now that we have covered what a legal decision is, it is time to talk about how legal decision-making authority is established.
Effect of Birth Certificate
One of the most common questions we're asked in new child custody cases is what effect is given to the birth certificate. The short answer is that the birth certificate doesn't directly establish any parental rights. However, this can be used in an establishment action to create a presumption of paternity. When paternity is presumed, the family court can issue a preliminary injunction that prevents either parent from leaving the state with the child. This can be important when one parent wants to relocate with the child without the other parent's consent.
Petition to Establish Legal Decision-Making
Legal decision-making is formally established with a petition filed in family court. When the parents agree, the process can be very simple and, in most cases, completed without attorneys. There are forms available at every Superior Court location and each county's website. When parents don't agree, the family court judge will decide after a trial.
The Best Interest Factors
When the judge has to decide legal decision-making (and/or parenting time), there are certain statutory factors they must consider pursuant to A.R.S. § 25-403. These are commonly referred to as the "Best Interest Factors" and include:
- 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.
The family court may appoint other professionals such as best interests attorney or a court-appointed advisor to help the judge gather additional information important to their legal decision-making determination. The judge also can order parents to submit to different types of mental health or psychological evaluations and to comply with any recommended treatment.
Third Party Rights
Nonparents like grandparents or people with parent-like relationships to the child can petition the family court to have legal decision-making authority, too. This type of case would be called a third party rights case. Nonparents can also seek visitation (not the same thing as parenting time) with a child, too.
Types of Legal Decision-Making Orders
Joint Legal Decision-Making
Joint legal decision-making is the most common decision-making arrangement. It is also the starting point for the judge in every Arizona family court case. Parents with joint legal decision-making must agree before any major legal decision is made. Obviously, this can lead to disputes whenever the parents cannot agree. In those cases, the family court judge usually serves as the "tiebreaker" and makes the final decision. For parents who struggle to cooperate, joint legal decision-making can lead to a lot of additional litigation.
Sole Legal Decision-Making
Sole legal decision-making is what parents traditionally think of as sole legal custody. It gives one parent the authority to make all legal decisions for their children usually without any requirement to seek input from the other parent.
Some of the most common reasons why sole legal decision-making is awarded:
- Domestic violence or child abuse
- Substance abuse
- Mental illness
- Physical incapacitation of a parent
- Inabiity for parents to cooperate, which could include a history of non-responsiveness from one parent
- Logistical impossibility (i.e. one parent's job takes them to a remote location that makes real time communication impossible)
Joint Legal Decision-Making with Final Say
A hybrid of the other two types of legal decision-making, final say authority can be awarded to one parent so that they can still make decisions when the parents otherwise cannot agree. This authority can be characterized as "presumptive" which usually allows the parent with final say to make the legal decision before consulting with the other parent. There have been several cases taken to the Court of Appeals and even the Supreme Court of Arizona because some litigants have argued that presumptive final say is essentially sole legal decision-making. Conversely and probably more commonly, final say authority can be specified to require good faith consultation between the parents before the parent with final say can make a decision. Final say also can be limited to a particular category of decisions, i.e. like medical decisions only. Although rare, judges can even award final say authority concerning a certain category of decisions to each parent. We've seen cases where one parent is authorized to make educational decisions and the other is authorized to make medical decisions in the event that the parents disagree.
Modification of Legal Decision-Making
Legal decision-making orders are not permanent. Legal decision-making can be modified whenever circumstances with the parties or children change significantly.
By Agreement
The easiest, fastest, and least expensive method to modify legal decision-making is to reach an agreement with the other parent. There are forms that can be used or, if you want greater peace of mind, you can have a family law firm prepare your agreement. We offer cost effective legal document preparation in these cases so that you can be sure your document was professionally and properly prepared.
Protip: Some changes do not require formal modification. Parents are usually free to deviate from the provisions of their parenting plan whenever they both agree. So if it is a one time or irregular event that you believe conflicts with a provision of your parenting plan, it might be possible to work it out with your coparent without formal modification.
Petition to Modify Legal Decision-Making
When agreement is not possible, a parent can file a petition to modify legal decision-making. As a prerequisite for a petition to modify, you will need to be prepared to prove to the family court that there have been "substantial and continuing changes" since your previous legal decision-making orders were entered and that those orders were entered at least a year ago. In cases where an emergency situation endangers the children, a parent can modify at any time and in cases where one parent has violated legal decision-making, the other parent may be eligible to modify as early as six months after the previous legal decision-making orders were entered.
Enforcement of Legal Decision-Making
Petition to Enforce Legal Decision-Making
When a parent violates the legal decision-making orders (or any family court order for that matter), the other parent can file a petition to enforce. These petitions serve to inform the judge of the violation(s) and ask for whatever remedies may be appropriate. Family courts have broad authority to impose sanctions for violations of family court orders. The violating party can be ordered to pay the other party's attorney's fees and court costs or even pay a fine per each subsequent violation. In severe cases, the family court may modify the orders to ensure compliance or even find the violating party in contempt. Contempt can result in the violating party's incarceration (jail time).
Coparenting Tools
Coparenting can be challenging, but it does not have to hopeless. There are a variety of tools and services available to improve coparenting communication and coordination.
Coparenting Apps
Coparenting apps are maybe the most basic category of coparenting tools, but that does not mean they are totally ineffective. Coparenting apps offer a variety of convenient features that can really improve coparenting communication and coordination. Some examples include shared calendars, messages with read receipts to let you know when your coparent read your message, shared expense trackers, and tamper-resistant messaging platforms that make it easier to safeguard against one parent manipulating or editing coparenting communications. Admittedly, a lot of this can be accomplished with other apps already on your phone or computer and coparenting apps usually do charge a monthly subscription fee.
Parenting Coordinator
A coparenting coordinator is a person appointed in your family court case to help resolve coparenting issues before they rise to a level that might require litigation. A few years ago, family court judges could appoint parenting coordinators but that changed and now the parties must agree to this type of appointment. Parenting coordinators are typically practicing attorneys or former family court judges who charge an hourly rate—sometimes several hundred dollars per hour—so this can be a considerable expense especially in situations where the other parent may be inclined to inflate your costs vindictively.
Coparenting Coaching
This is an evolving service that can help parents resolve coparenting challenges outside of court. What exactly this entails varies by provider, but we offer a dedicated coparenting coaching service that allows you to have complete control over the scope and budget. At the beginning, you can meet with your coach to share your goals and set a spend limit. This allows you to get as little or as much help as possible while retaining complete control over the expense, unlike the parenting coordinator appointment. Your coach can help you improve communication, prevent or de-escalate conflict, and avoid family court litigation.
Coparenting Counseling
Different from coaching and parenting coordinator appointment, this is a type of family therapy designed to help parents work through issues that may be adversely affecting their coparenting relationship. This is a great option when both parties are willing to participate and have the means to afford therapy that may not be covered by ordinary insurance.
Conclusion
If you read this far, chances are good that this information is important to you because you have a pending case or anticipate one. We hope this guide was a helpful starting point, but the next best step is to take advantage of a free initial consultation with one of our experienced child custody attorneys. The consultations are conducted by telephone for maximum convenience and give you an opportunity to get answers to your specific questions.
