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What is Legal Decision Making in Arizona?



As the best child custody lawyers in Gilbert AZ we often get asked, “what is legal decision making in Arizona?” I want to talk today about a topic that comes up all the time and probably raises more concern and worry with parents than just about anything else, and that’s the issue of child custody. Now, that’s really not a term that we use in Arizona anymore. A few years back, the Arizona legislature sort of went back to the drawing board and changed the terminology a little bit and today, when we talk about child custody, what we’re really talking about is something called legal decision making and parenting time. So I want to focus specifically on the issue of legal decision making in our discussion today.

Legal decision making is the authority that courts give to parents when they get divorced or when they split up to make legal decisions for their kids. So the question that always comes up when I’m talking to somebody about this issue is, “Well, what kind of decisions are we talking about?” Primarily, they relate to issues like education, health care and religious training. Those are the three main topics that legal decision making covers, and judges really have three options when it comes to legal decision making in Arizona. The first option and the most preferred option is something called joint legal decision making. Joint legal decision making is where both parents have the authority from the court to make decisions for their kids, which really, if you think about it, that’s how it should be.

What that means in practice is that parents, no matter how much they don’t like each other, no matter how much they don’t get along, they still have to put their heads together, put aside their differences and make decisions for their kids. So when it comes time to pick a school for a child to go to, the parents need the work that out together. That’s the route most courts are going to go in most family court cases. Like I said, that’s the default position if you will. The court does have a couple of other options that come up once in a while. One option is something called sole legal decision making, and it sounds exactly like what it is. It’s where a court gives one parent the authority to make those decisions about education and health care and so on, without consulting with the other parent. So, obviously the question comes up, “Oh gosh, how do I get that? That sounds great! I don’t like the person that I was married to. Why would I want to have to talk to them about these kind of decisions?” The problem is that it’s not something the courts like to order in most family court cases. In most instances, if a parent wants sole legal decision making, you have to have something pretty bad going on in the relationship. Something like significant substance abuse, domestic violence, obviously abuse of a child, some criminal conduct- it really does have to be a situation where something bad is going on and the court sort of determines that I’m just not going to make one parent try to work things out with the other parent when it comes to decision making. It’s not that common for a parent to get sole decision making.

The third option, which is kind of a hybrid, is called joint legal decision making with one parent having final say. So think of it as sort of having a second vote. That kind of comes about under the same scenario as sole decision making. Typically, you have to have a really strained relationship and some bad stuff going on, like an order protections in some cases. Even that doesn’t always give you final say authority, but even under that scenario, if a court gives one parent final say, they still require the two parents to sort of try to work things out on whatever decision they’re making. You know, who’s gonna put the braces on the kid or whatever the case may be. And only in the event, after making a good faith effort, they cannot come to an agreement on whatever they’re trying to decide, then the court will allow a parent to have final say.

So, what I tell all of the potential clients or clients that I work with when this issue comes up, is that you really have to kind of get your mind around the fact that it’s probably going to be a joint legal decision making scenario. It becomes the burden of the person who wants to do one of the other options to provide evidence to the court that it’s in the best interests of the child for the court to order either sole decision making or final say decision making. So let me tell you a quick story about a case that I had recently where this issue came into play:

I was representing a father named Carl. Carl and his wife obviously decided to get divorced. They had one child together, a daughter, and they were both very close to the daughter. Mother had it in her mind that since she’s the mom- and had stayed home with the child, that by right, she should be able to make all these decisions. After all, during their marriage, she had probably made most of the decisions. She had taken the child to most doctor appointments, probably talk to the teachers more than dad did because he was at work… So this is a pretty common scenario that comes up in a lot of cases. Obviously, when you get divorced the rules change and, of course, I tell all my clients; make sure that you become a very proactive parent. But in this case, mother really thought that she was entitled to make all of these decisions for their daughter going forward and really exclude dad from them. And my client Carl, he was pretty concerned about that, and I told him, “Listen, unless you’ve got something really bad going on in this relationship, you know, are you an alcoholic? Is there an order of protection? Have you been arrested for DUI? Anything like that, it’s most likely that the courts going to award joint legal decision making and you guys are going to have to make these decisions together. Well, to my surprise, mother decided that she was gonna fight this issue all the way to court.

We went to court and we put on evidence to show that father was involved in the child’s life, that he was interested in her education, that he felt he could communicate with mother… And ultimately, the judge, after hearing the evidence, ruled that yes; this was a case where the parents needed to share joint legal decision making. I think that took a big stress off of Carl’s shoulders, because now he knew that he had just as many rights as mom did, and I think that’s a really important point for everybody to understand: that Arizona is not a state where mom is favored. Neither parent is favored. In fact, the courts are not allowed to favor one parent over the other. They have to look at what’s in the best interest of the child and in this case, thankfully, the court found that it was in the best interests of the child for Carl to share joint legal decision making with his wife.

So this is an issue that comes up all the time. We have a lot of experience here in our law office in dealing with custody issues and again, specifically the issues involving legal decision making, and it’s something that we go to court over all the time. Certainly, we are not afraid to go and fight for our client’s rights in these types of issues, and we want to make sure that every parent out there has the peace of mind that their rights are being fought for and that they have every opportunity to co-parent their child after a divorce. If you’re going through a divorce, or even if you’re going through a situation where you’re not married but you have a child, come to the law offices of Kevin Jensen. We have a lot of experience dealing with these types of issues and we would love to help you out.

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Jensen Family Law in Gilbert
4365 E Pecos Rd # 138,
Gilbert, AZ 85295
(480) 900-2302


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