As a practicing divorce attorney in Gilbert Arizona, for over a decade, one of the most common issues I have to deal with in divorce cases and even post-divorce proceedings involves which parent should have custody of the minor children. Most people associate the word “custody” with the concept of which parent will the child/children live with? For obvious reasons, this can be one of the most heavily disputed and emotional issues in any divorce proceeding.
Since January of 2013, the term “custody” is no longer used in Arizona. Instead, family law judges now determine who will have “legal decision-making” regarding the minor child/children. Legal decision-making has very little to do with where the children live versus who will make decisions for the minor children regarding such things as; healthcare, education, and religion. Legal decision-making can be either joint or, in some circumstances the court may award one parent sole legal decision-making. Although there are a number of factors the court must consider when deciding between joint or sole legal decision-making, ultimately the most important factor is which method will serve the child/children’s best interest.
Under Arizona’s new statutory scheme regarding legal decision-making, joint legal decision-making is preferred. Joint legal decision-making allows both parents to continue to make decisions regarding the child/children’s healthcare, education, and religious issues. This, of course, requires the parents to put aside any personal differences they may have and continue to make decisions that are in their child/children’s best interest. The reasoning behind the preference for joint legal decision-making is that both parents love their children and should both have a say regarding important issues involving the children. It also encourages the parents to cooperate and work together in making these decisions. In the long run, two parents who can put aside their differences and make decisions that will best benefit their children is always best.
In some cases, the court may award one parent sole legal decision-making authority. In those cases , one parent is given the authority from the court to make all decisions regarding the health care, education, and religion of the minor child or children. This does not mean the parent with sole legal decision-making authority can exclude the other parent. Except for the most exceptional of circumstance (such as when a parent is in prison) both parents are entitled to information regarding their children’s healthcare, education, and religion and should have open access to any records regarding any of these things. Moreover, it is important to understand that legal decision-making does not always impact the amount of parenting time each parent may have.
There are number of factors the court must consider when deciding whether joint or sole legal decision-making is appropriate for a given case. These factors are found in A.R.S. 25 – 403.01 and include the following:
1. The agreement or lack of an agreement by the parents regarding joint legal decision-making.
2. Whether the parent’s lack of an agreement is unreasonable or is influenced by an issue not related to the child’s best interest.
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.
In addition, the court must Also consider what legal decision-making scheme serves the child or children’s best interest as outlined A.R.S. 25-403. This statute includes 11 additional factors the court must consider to determine the best interest of the child/children.
Legal decision-making issues can be very complicated and highly contested. Because of the numerous factors, the law requires judges to consider, legal decision-making issues can be quite fact intensive. It is more important than ever to have a legal representative who knows and understands the complexities of the legal decision-making statutes. For this reason, consulting an Arizona family law attorney with substantial experience in dealing with these issues may be one of the most important steps someone going through a divorce can take.
Jensen Law offers a free 30-minute consultation with an experienced Arizona family law attorney who knows and understands the complexities of Gilbert Arizona’s legal decision-making statutes. If you would like a complimentary consultation, please call us.