After Divorce Who Really Has Legal Decision Making Authority Now?
During a divorce or custody dispute, the judge must determine who is going to make the major decisions for the children. Arizona Revised Statute #25-401(3) defines legal decision making as the right and responsibility to make all non-emergency decisions for a child, including those regarding education, health care, religious training and personal care decisions. The judge may award joint or sole legal decision making.
Joint legal decision making means both parents make these major decisions together while sole legal decision making means only one parent has the authority to make the decisions. The courts tend to lean towards ordering joint legal decision making; there are cases, however, where parents have too much conflict and are unable to make decisions together. In these cases, the court would order one parent to make the “final” decision if the parties were unable to agree on an issue, but first, the parties had to make a good faith effort discussing it. The judge would give one parent the final decision making authority to prevent the parties from returning to court for every little issue or disagreement, such as which school the children will attend or which doctor the children will see. One problem that occurred was the parent with final decision making authority would simply make the decisions without first consulting with the other.
In a recent Court of Appeals case, the court agreed that giving one parent final decision making authority was essentially giving that parent sole legal decision making. Therefore, rather than a judge awarding joint legal decision making with one parent having final decision making authority, the judge must now decide which parent shall be awarded sole legal decision making for major decisions. For example, if two parents agree on medical and religious decisions, but do not agree as to school the children will attend, the judge may award one parent sole legal decision making regarding educational decisions while continuing to allow the parents to make joint decisions regarding medical care and religion.
Based on the same Court of Appeals case, the judge cannot make any of the major decisions for parents. For example, if parents cannot agree if their child will be homeschooled or attend public school, the judge cannot tell the parents that their child will be homeschooled or attend public school. The judge may only say which parent will make the educational decisions rather than making the decisions for them.
In conclusion, when parents cannot agree, the judge cannot make decisions regarding children, but can make the decision on which parent will. A judge must now award the parent he or she finds most qualified to make decisions with sole legal decision making authority. I can help navigate the family court system to protect your parental rights with your children. Call me today at (480) 833-1113.