Legal Decision-Making

Cindy Best

In Arizona, we do not use the term “custody.” We instead use the terms “legal decision-making” and “parenting time.” These two aspects of a parenting plan comprise what is traditionally considered custody in other states. In determining parenting time and legal decision-making in the child(ren)’s best interests, the court refers to what is known as the Best Interest Factors.

Best Interest Factors

The court shall determine legal decision-making and parenting time, either originally or on petition for modification, in accordance with the best interests of the child. The court shall consider all factors that are relevant to the child’s physical and emotional well-being, including:

  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.

When entering an order regarding legal decision-making, the Court refers to A.R.S. 25-403.01, below:

  1. In awarding legal decision-making, the court may order sole legal decision-making or joint legal decision-making.
  2. In determining the level of decision-making that is in the child’s best interests, the court shall consider the factors prescribed in section 25-403, subsection A and all of the following:
  3. The agreement or lack of an agreement by the parents regarding joint legal decision-making.
  4. Whether a parent’s lack of an agreement is unreasonable or is influenced by an issue not related to the child’s best interests.
    1. The past, present and future abilities of the parents to cooperate in decision-making about the child to the extent required by the order of joint legal decision-making.
    2. Whether the joint legal decision-making arrangement is logistically possible.
  5. An order for sole legal decision-making does not allow the parent designated as sole legal decision-maker to alter unilaterally a court-ordered parenting time plan.
  6. A parent who is not granted sole or joint legal decision-making is entitled to reasonable parenting time to ensure that the minor child has substantial, frequent, meaningful and continuing contact with the parent unless the court finds, after a hearing, that parenting time would endanger the child’s physical, mental, moral or emotional health.

Legal Decision-Making

“‘Legal 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.” A.R.S.  § 25-401(3). Legal Decision-Making can be ordered in three different forms:

  • Joint Legal Decision-Making;
  • Joint Legal Decision-Making with one parent having final say; or
  • Sole legal decision-making.

 Joint Legal Decision-Making: This means both parents have to make decisions regarding the health, education, welfare and religious decisions together regarding the minor child(ren). Neither parents’ rights are superior to that of the other parent. A.R.S. § 25-401(2).

Joint Legal Decision-Making with Final Say: This means both parents confer to make decisions regarding the health, education welfare, and religious decisions together regarding the minor child(ren), however, in the event of a dispute, the parent with final decision-making authority has the ability to make the final decision in the event of a disagreement. This requires both parents to communicate regarding the best interests of the children but designates one parent with superior decision-making authority over the other parent.

Sole Legal Decision-Making: This means one parent is designated with the authority to solely make decisions regarding the health, education, welfare, and religion of the minor child(ren). This does not mean the parent with sole decision-making authority does not have to keep the other parent informed, can prevent them from attending medical appointments, school functions, religious functions, etc., it simply allows one parent to make decisions.

Pros and Cons of Joint Legal Decision-Making

 

PROS CONS
 

Both parents are involved in making decisions in the best interests of the child(ren).

 

When the parents cannot agree, the parties must use the Court or other court professionals to resolve the issue.
Both parents have input.

 

If one parent is unfit, joint legal decision-making may not be in the child’s best interests, particularly where one parent is the perpetrator of significant domestic violence.
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