Parental Decision vs. The Nanny State

Arizona Family Courts, like all courts dealing with the trauma and fluid emotions surrounding the break-up of families, constantly grapple with the issue of where to draw the line when it comes to resolving parenting disputes between parties. How far should the Court go in micromanaging decisions regarding the raising of children (i.e., adopting a “nanny state” approach) and deferring such decisions to conflicted parents (i.e., adopting a “hands-off”, laissez faire approach)? The issue fundamentally boils down to an issue of legal decision-making (also known as legal custody). Like most states, Arizona recognizes two forms of legal decision-making: joint legal decision-making authority – where both parents have co-equal rights to make decisions involving their children (effectively giving each a “veto” power); and sole legal decision-making authority – which vests all decision-making rights in one parent. Traditionally, Arizona has favored joint legal decision-making and only reluctantly (and sparingly) awarded sole legal decision-making to parents. The practical problem for the Family Court is that the choice to award joint legal decision-making authority versus sole legal decision-making authority involves a corollary issue: how involved does the Court want to be in parenting other people’s children? Granting joint legal decision-making means that the Court is likely to be called on to “referee” parenting disputes between conflicted parents, whereas granting sole legal decision-making generally absolves the Court from any further responsibility and involvement in the process.

A philosophical movement developed in the Arizona Family Court based on the beliefs that the Court’s role is not to raise children; micromanaging parent disputes takes up too much of the Court’s already sparse time; and, if parents cannot cooperate in raising their children, they should suffer the adverse consequences of losing the right to make decisions for their children. This movement culminated in the theoretical construct that the Family Court lacked the statutory authority to make parenting decisions for parents and that the Court’s only role when faced with disputes over how to parent children is to award one parent sole legal decision-making authority. This abdication of the Family Court’s traditional responsibility of resolving parent disputes in the best interest of children trended away from the historic preference for joint legal decision-making; unfairly punished parents with a legitimate parenting dispute (who might otherwise agree 95% of the time); and really did nothing to reduce the Court’s case load since it only encouraged parents to pursue sole legal decision making authority – which is much more involved than determining whether little Susie should be enrolled in soccer or swim lessons.

The Arizona Supreme Court recently issued two opinions that more-or-less squelch the Family Court’s philosophical abdication of its traditional responsibility to resolve parental disputes in the best interest of children. In Nicaise v. Sundaram, CV-18-0089-PR (January 17, 2019), the Arizona Supreme Court rejected the view that the award of joint legal decision-making authority with “final decision-making authority” in one parent was really a sole legal decision-making award. Rather, the Supreme Court held that granting such “tie-breaking” authority within a joint legal decision-making arrangement is practically and legally different than awarding sole legal decision-making authority to one parent as it still requires both parents to work together and maintains both parent’s legal rights. In reaching this holding, the Supreme Court commented that the contrary view “unnecessarily injects uncertainty into a well-established practice and is inconsistent with the overall [statutory] structure.” (Emphasis added)

In Paul E. v. Courtney F, CV-18-0111-PR (April 25, 2019), the Arizona Supreme Court finished the job it started in Nicaise of wiping out the theory that the Family Court’s only authority in the event of a parental dispute between two parents with joint legal decision-making is to award one parent sole legal decision-making authority. The Supreme Court does away with this concept in ¶27 on p. 11 of its Opinion:

. . . if the court awards joint legal decision-making authority, the court is authorized to resolve any conflict. The court is not limited to merely vesting one parent with sole legal decision-making authority on the disputed issue, and we disapprove of the contrary view in Nicaise I. (Emphasis added)

About the Author:

Leonce Richard is a Member in our Phoenix office. Should you wish to contact him regarding this blog or any other concerns, please call him at 602-285-5025. View Lee’s bio here.