THE AURIT CENTER 
The terminology creates anxiety — and conflict — for many divorced spouses in Arizona. And yet, the term “child custody” no longer appears within Arizona’s domestic relations law. In 2013, Arizona changed all statutory references from “physical custody” to “parenting time” and from “legal custody” to “legal decision making authority,” acknowledging the negative and emotionally-charged nature of the term.
Divorcing and divorced parents need to know how parts of a recent Arizona Court of Appeals ruling, affirmed by the Arizona Supreme Court in Nicaise v. Sundaram could dramatically impact their parental rights. The new case law is a considerable shift in how family courts now decide legal decision-making authority when parents with joint legal decision-making disagree on a major issue.
Legal decision-making authority defines parents’ legal rights — and responsibilities — to make major decisions about the care and upbringing of their children. The areas of major decision-making include major decisions about the child’s health care, education, and religious training.
Major decisions on these issue may include whether a child undergoes a surgery, which school the child attends, or whether a child is baptized, or has a bar mitzvah.
Not included are daily and routine decisions parents make for children: what a child will eat for dinner; how many hours they can play video games; or what clothes they wear to school. Each parent reserves the right to make these daily decisions during their own parenting time.
Parents may have “sole” or “joint” legal decision-making authority, as well as “joint legal decision making authority” with a “final say” to one parent. When a parent has “sole” legal decision-making authority this means that only one parent has the right to make major medical, educational, and religious decisions for the child. When parents have “joint” legal decision-making authority this means both parents must work and decide together the outcome of these major decisions regarding children. Neither parent’s rights are superior to the other, unless one parent is awarded the “final say.”
In some cases, one parent may have “sole” legal decision-making authority or “final say” over one area (i.e. health care decisions) while the other parent has “sole” legal decision-making authority over another area (i.e. educational decisions).
Joint legal decision-making authority is most commonly awarded during divorce in Arizona. Unless there is some compelling reason why “joint” legal decision-making authority is not in the best interest of the children — there exists a history of domestic violence, child abuse, substance abuse, or some other compelling reason, Arizona courts are likely to award “joint legal decision-making authority.” Unsurprisingly, situations arise where parents with joint legal decision-making authority disagree.
Gone are days that an Arizona court will make a specific substantive legal decision when parents with joint legal decision-making authority disagree on a major issue.
Historically, Judges would order resolution of specific issues when parents with “joint legal decision-making authority,” disagreed on an issue. However, now the court may not, as it has done in the past, make any specific decisions as to the outcome of these disagreements.
The Court in Nicaise ruled that if parents cannot agree on a joint legal decision-making issue, the court must now choose which parent shall decide the issue. Therefore, the court will award “sole legal decision-making authority” or “final say” to one parent over that entire area of decision-making to the parent that the court determines will make the decision that is in the best interests of the child. That parent then is granted the right to make the decision at issue, and all future decisions related to that area of decision-making.
Take a moment to lift your jaw from the floor. Now, consider how this stunning new reality may affect the behavior and underlying motivations of parents when it comes to reaching mutual agreements, rather than risking it all in court.
When parents disagree over a major educational issue, suddenly, everything is on the line. When parents go to court, one parent will lose their right to decide the fate of their child’s school, and any other educational issues. This frightening nuclear option will become a reality for one parent in all of these cases.
For example, Mother and Father at divorce agreed that their son would attend School A. Two years later, Mother is concerned about son’s performance and has proposed that he attends School B, which she believes will provide him with more opportunities and a better education. Father opposes the change, as he believes moving his son away from his friends and creating a long commute will do more harm than good. Historically, parents would bring their arguments before a judge, and the judge would make the decision, either sending the child to School A or School B.
No longer.
In light of Nicaise, Judges do not have the authority to make a decision about whether son attends School A or School B. Instead, the judge must either grant sole decision-making authority to one parent over the area of “educational decisions” or give one parent “final say” over that area.
Harsh?
Our gut reaction: yes. Children generally thrive when both parents are involved in making major decisions regarding their care — when both parents remain invested in their child’s health and well-being. However, children suffer when parents remain engaged in continuous conflict after divorce.
The result of the new case law is arguably extreme: one of two potentially wonderful parents who simply cannot agree on a major issue will be stripped of their legal rights. But, could the rationale support decades of research that points to continuing conflict as the primary cause of psychological harm to children?
Surely, the approach will help to reduce a tremendous backlog of cases in family court. Rather than parents appearing year after year in court to have courts decide issues, now just one appearance and decision will mitigate the need for return visits. The court is attempting to solve its backlog problem. But, the court is also likely considering the new pressure placed on parents to cooperate together and reach agreements outside of court. Perhaps the court acknowledges that putting an end to incessant fighting, even at the cost of stripping a parent of their decision-making authority is actually in the better interests of children. One would think the new approach encourages parents to avoid continued fighting in court at all costs, in order to prevent losing equal rights to their children.
Maybe not so harsh after all.
Parents are wiser than ever to enter mediation to resolve legal decision-making issues without going to court. Reaching agreement in mediation completely eliminates the risk of losing equal rights to legal decision-making authority.
In mediation, a neutral mediator helps parents after divorce reach mutually acceptable agreements on any issues in dispute. Parents remain in control over decisions and personalize their terms to meet both of their needs as much as possible. Professional mediators help parents develop creative agreements that both parents feel comfortable agreeing upon.
Mediation is usually very brief, successful, affordable, and focused on solving problems, rather than fighting. In a post-Nicaise world in Arizona, it may be the only savior for parents who wish to hold on to their legal rights.
We have observed the news sending shockwaves down the spines of parents within our mediation rooms. The mood visibly shifts once parents are made aware. Silence is usually followed by continued conversation in quieter and more measured tones. Will parents dig deeper to find compromise rather than face a guillotine of their parental rights?
We believe, yes.
We encourage family law attorneys, mediators, and Judges to make parents fully aware of the new normal, and inform parents about the lasting consequences of failing to reach agreements regarding their children.
