How Will a Court Determine Who Can Make Decisions Concerning the Children After Divorce?

You may have heard the word “Custody” or “Legal Custody” used in connection with a parent’s right to make decisions concerning education (such as school choice), medical decisions (such as whether a child will receive certain immunization) and religion (such as religious preferences). However, Arizona does not use the word “custody” in making decisions about a minor child. Instead, Arizona uses the term “legal decision making” to better define what a court must do in deciding the issue of who can make decisions related to the minor child.

Legal decision making refers to the right and responsibility of a parent to make non-emergency decisions involving the child. These decisions include education, health care, religious training and personal care.

The court will award either sole legal decision making or joint legal decision making. Sole legal decision making gives one parent the right to make all major decisions for the child, without having to consult with the other parent.

Joint legal decision making requires the parties to share decision making responsibilities. Neither parent’s rights are superior to the other parent’s rights, except on specific issues as set forth by the court.

Arizona provides by statute that, absent contrary evidence, it is in the best interest of the child that both parents participate in decision making about the child. Discuss with your lawyer whether there is any evidence to support the following factors to be considered by the court:

  • The agreement or lack of agreement by the parties as to joint legal-decision making.
  • Whether a lack of agreement is unreasonable or influenced by a reason not related to the child’s best interest.
  • The past, present and future ability of the parents to cooperate in decision-making.
  • Whether joint legal decision-making is logistically possible.

Based upon a review of the factors, the Court may decide it is in the best interest of the minor child for one parent to exercise sole legal decision-making, or whether both parents should have joint legal decision-making.

About the Authors:

Marlene Pontrelli is a Member in our Phoenix office. Marlene is a certified specialist in family law. Her practice focuses on all aspects of family law including dissolution, post-dissolution, paternity, child custody and child support matters. She is admitted to practice in California and Arizona. She is a member of the State Bar’s Family Law Practice and Procedure Committee and is a judge pro tem for the Superior Court of Maricopa County in family law. She has extensive trial and appellate experience including appearing before the Arizona Court of Appeals, Arizona Supreme Court and Ninth Circuit Court of Appeals.

Ms. Pontrelli has written several books, including as a co-author of the Divorce in Arizona book. She is a frequent lecturer in the area of family law and has conducted workshops throughout the country. Ms. Pontrelli is also an adjunct professor at The Sandra Day O’Connor School of Law at Arizona State University, where she teaches the family law class. Marlene may be reached in our Phoenix office at 602-285-5081.

Bob Schwartz is a Member in our Phoenix office. Bob has been practicing law for over 40 years, specializing in family law. He is a member of the American, Arizona and Maricopa County Bar Associations. He is admitted to practice in the federal courts of New York, Arizona, Ninth Circuit Court of Appeals, and the U.S. Supreme Court. Mr. Schwartz is a fellow of the American Academy of Matrimonial Lawyers and past president of the Arizona chapter. He serves as a judge pro tem for the Superior Court of Maricopa County in family court matters. He is a certified family law specialist by the State Bar of Arizona; is a frequent lecturer on family law and related matters; and, former member of the State Bar Family Law Advisory Commission. Mr. Schwartz has tried numerous complex business valuation cases as well as complex custody cases. He has testified as an expert in family law matters. Bob co-authored the Divorce in Arizona book. He may be reached in our Phoenix office at 602-285-5020.