Arizona statute uses the terms “legal decision-making” and “legal custody” interchangeably somewhat interchangeably. See ARIZ. REV. STAT. ANN. § 25-401(3). The applicable statute defines “legal decision-making” as “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.” Id.
In deciding how to award legal decision-making, Arizona courts have few options. See ARIZ. REV. STAT. ANN. § 25-403.01(A). For example, an Arizona court may award “joint legal decision-making,” which “means both parents share decision-making and neither parent’s rights or responsibilities are superior except with respect to specified decisions as set forth by the court or the parents in the final judgment or order.” ARIZ. REV. STAT. ANN. § 25-401(2). Alternatively, an Arizona court may award “sole legal decision-making,” which “means one parent has the legal right and responsibility to make major decisions for a child.” ARIZ. REV. STAT. ANN. § 25-401(6). The Arizona Supreme Court has read these statutes to give rise to an additional type of award, in which the court awards joint legal decision-making, while giving one parent a “tie-breaking” option in form of “final say” on some issues. See Nicaise v. Sundaram, 432 P.3d 925 (Ariz. 2019). Under an award of joint legal decision-making with final say, the parties have to attempt to exercise joint decision-making in good faith, before the party with final say may make the final decision. See id.
When determining legal decision-making, an Arizona court is required to consider all the factors that are involved the “best interest” analysis covered by Section 25-403 of the Arizona Revised Statutes. For a discussion of those factors, please see Huffman-Shayeb Law, PLLC’s previous article, titled Arizona Family Court Cases & The Best Interests of the Minor Children. Section 25-403.01(B) of the Arizona Revised Statutes also requires a court consider four (4) more factors when making a legal decision-making award, including:
1. The agreement or lack of an agreement by the parents regarding joint legal decision-making.
2. Whether a parent’s lack of an agreement is unreasonable or is influenced by an issue not related to the child’s best interests.
3. 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.
4. Whether the joint legal decision-making arrangement is logistically possible.
Arizona places additional limitations on awards of legal decision-making, based on specific circumstances. For example, unless the court makes a finding that there is no significant risk to the child, the court is not permitted to grant sole or joint legal decision-making to a person who is a registered sex offender or has been convicted first degree murder of the other parent. See ARIZ. REV. STAT. ANN. § 25-403.05(A).
Additionally, Arizona statute prohibits an award of joint legal decision-making when the court making a finding of the existence of “significant domestic violence” as defined by statute. See ARIZ. REV. STAT. ANN. § 25-403.03(A). “If the court determines that a parent who is seeking sole or joint legal decision-making has committed an act of domestic violence against the other parent, there is a rebuttable presumption that an award of sole or joint legal decision-making to the parent who committed the act of domestic violence is contrary to the child’s best interests.” ARIZ. REV. STAT. ANN. § 25-403.03(D). However, it is worthwhile to note that “[t]his presumption does not apply if both parents have committed an act of domestic violence.” Id.
Similarly, “[i]f the court determines that a parent has abused drugs or alcohol or has been convicted of any drug offense under title 13, chapter 34 or any violation of section 28-1381, 28-1382 or 28-1383 within twelve months before the petition or the request for legal decision-making or parenting time is filed, there is a rebuttable presumption that sole or joint legal decision-making by that parent is not in the child’s best interests.” ARIZ. REV. STAT. ANN. § 25-403.03(D).
If you are considering initiating or are involved in a court action regarding legal decision-making / legal custody, and need the guidance of an experienced and compassionate law firm, do not hesitate to contact Huffman-Shayeb Law, PLLC to set up a consultation and discuss your options.
Disclaimer: This publication is for educational and informational purposes only, and represents Huffman-Shayeb Law, PLLC’s understanding of the present state of Arizona law. This publication does not constitute legal advice or council, and should not be construed as a comment on the merits of any particular case. It should be noted that the laws and requirements of the State of Arizona may change at any time and that this information may not be complete or correct.