THE BASICS OF LEGAL DECISION MAKING IN ARIZONA
In the world of Family Law there are two main areas of work, Divorce (dissolution) and Paternity actions. The difference between the two hinges on marital status. If the couple was not married, the only potential issues will surround the children that came from the relationship, which would be handled as a Paternity action. If the couple was married, they will need to file for divorce, and not only will they be working towards how to co-parent the children, they will be dividing the “things” or community property from the marriage.
Here we want to start outlining the basics of what a court will decide when children are at issue, in either a Divorce or Paternity case. There are three main issues; Legal Decision Making, Child Support, and Parenting Time. We will be writing informative pieces over the next few weeks to help you better understand the basics of all 3 areas, and hoping to give you the information you need to make informed choices no matter if you decide to retain counsel or attempt to go it alone as a “pro se” litigant. In fact we recently shared a VLOG (video blog) about the top 5 times when someone likely doesn’t need to hire an attorney, because at [nap_names id=”FIRM-NAME-1″] we start and end all our efforts with integrity as the benchmark.
This blog will outline and address the basics of Legal Decision Making;
Many folks still use the term “Custody” when discussing this area, but As of January 1, 2013, the term child “custody” is no longer officially recognized under Arizona law. As part of changes made by the state legislature to the Arizona Revised Statutes, specifically Title 25 (the laws about Marital and Domestic Relations) the term child “custody” was replaced with the phrase “Legal Decision-Making.”
So, that begs the question, what is Legal Decision-Making?
Legal Decision-Making is the legal right of a parent to make all non-emergency decisions on behalf of the child. Legal Decision-Making includes decisions on education, healthcare, religion and personal care.
Legal Decision-Making may be Joint with neither parent having Final Decision-Making Authority; Joint with one parent having Final Decision-Making Authority; or Sole with one parent having all Legal Decision-Making Authority.
Arizona law begins with the presumption that it is in the child or children’s best interest to have substantial and meaningful contact with both parents, absent compelling reasons to show otherwise. This means that if you believe your child should not spend time with the other parent, the burden is on you to prove why that is best.
The Best Interests of The Child
The biggest consideration when decisions about a child are at issue is what result will serve the child’s “best interest.” When making this determination, the Court will consider all factors it deems relevant, giving specific consideration. Below are some of the relevant factors the law requires the Court to consider;
· The relationships among the parents and the child;
· The interactions between the child, her parents, siblings, step-parents and any other person significant to the custody determination;
· How well the child is adjusted to community, home and school;
· Assuming the child is of an age and sufficient maturity to express his wishes, his desires as far as where he wants to reside;
· The health, both mental and physical, of all involved;
· Whether a parent has allowed the other parent to have “frequent, meaningful and continuing contact” with the other parent. (Note that an exception to this factor might apply if a parent is acting to protect the child from being a victim of domestic violence or child abuse or from witnessing an act of domestic violence.)
· Whether a parent has acted in good faith in pursuing legal decision making authority or in making certain allegations against the other parent;
· Whether there is the existence of domestic violence or child abuse according to Arizona Revised Statutes Section 25-403.03.
· Whether an agreement regarding legal decision-making or parenting time was entered into by coercion or duress.
· Whether one or both parents has been convicted false reporting, child abuse or neglect under Arizona Revised Statutes Section 13-2907.02.
Joint Legal Decision-Making, Sole Legal Decision-Making and Parenting Time
People often struggle with understanding what the different types of Legal Decision-Making authority (formerly child “custody”) options are and how they work.
1. Joint Legal Decision-Making (joint child custody):
Shared or joint Legal Decision-Making authority permits both parties to share in the medical, religious, educational and personal care decisions surrounding their children. No one party can unilaterally decide to make a decision for the child that falls within one of these spheres (outside of an emergency) without first consulting with the other parent.
All things being equal, this is the arrangement that the Court will most often try to implement. It allows for both parents to be actively involved in the most intimate parts of their children’s lives. It also requires a great deal of cooperation between the parents. This arrangement is often very difficult for parents who cannot communicate. Judges, however, will often expect that parents put their personal differences aside so that they can better provide for their child’s well-being.
The major downfall of this arrangement is that if an agreement cannot be reached, the parties must seek the Courts’ intervention either through formal hearings or the use of court mediators. This can be tiresome, expensive, and slow, which is why many people choose the next option.
2. Joint Legal Decision-Making (joint child custody) With Final Say:
This solution is a hybrid between traditional joint Legal Decision-Making authority and sole Legal Decision-Making authority. In this arrangement, each party is given the same authority set forth above regarding joint Legal Decision-Making. However, if the parties cannot reach an agreement on a contested issue (within the realm of a major medical, religious, educational or personal care decision), one of the parties will be given the authority to have final say on that decision regarding the child.
Although this sort of decision-making arrangement essentially gives the party who has final say the ultimate authority to make the decision on a disputed issue, that individual must make a good faith and conscious effort to consider the position of the other parent. If the parent with final say makes a decision in an area that is not agreed upon, and the non-final-say parent feels (and can prove) that the decision was made without a good faith effort, or not in the best interest of the child, they can seek court intervention, which may include the shifting of final say authority.
3. Sole Legal Decision-Making (sole child custody):
When a parent is awarded sole Legal Decision-Making authority, he or she has the sole responsibility for making all the significant decisions as it relates to his or her children. A parent with this authority SHOULD still consult with the other parent before deciding regarding the child’s medical needs, religious training, educational surroundings or personal care. However, ultimately, that parent having sole Legal Decision-Making authority can decide unilaterally.
Courts are generally hesitant to make such an award and may even look with skepticism toward a party who is asking for it. Keep in mind, though, there are cases where such an award is appropriate. In cases where domestic violence, drug abuse, alcohol abuse, child abuse or mental health conditions are at issue, the court will consider awarding sole Legal Decision-Making. The court may also make such an award if it would be logistically impossible for the parties to share Decision-Making authority
Wrapping it All Up
Arizona law presumes that each parent should have equal right to visit with, and participate in the life of their children, unless there exists a reason that doing so would not be in the child’s BEST INTEREST.
When contemplating a divorce with children, or a Paternity action, the Court will always focus on the child’s best interest, and how the adults in that child’s life impact that interest.
At [nap_names id=”FIRM-NAME-1″], we strive every day to ensure our clients and their children are protected, honored, and treated with respect. We do not however advocate for taking a position that deprives an otherwise fit and appropriate parent from being an EQUAL part of their children’s lives.
If you or someone you know is facing a Family Law matter, reach out to us today for a FREE consultation at (520)740-1802, [email protected], www.rpmlawaz.com, or @rpmlawaz on social media (FB, IG, YouTube, & Twitter).