Hybrid child custody orders where parents are awarded joint legal decision-making with one parent granted final say in the event they cannot agree after consultation and good faith effort is common practice in Arizona. Awarding final say to one parent does not convert joint authority into sole legal decision-making as to child’s medical, mental health, dental, and therapy. Final decisive authority does not equal sole legal decision-making.
Hybrid custody orders such as these are common and commendable and do not convert joint into sole legal decision-making.
Robert J. Nicaise, Jr., and Aparna Sundaram (2019)
Final Say on Medical, Mental Health, Dental, Therapy Decisions
In this high-conflict child custody case, the family law judge awarded parents joint legal decision-making with father having final say if agreement was unobtainable as to the child’s medical, mental health, dental, and therapy. The Arizona Court of Appeals held that awarding father final say must be interpreted as awarding him sole legal decision-making on those concerns making consultation with the mother unnecessary. The Arizona Supreme Court disagreed, vacating the appeals court decision on this part and affirming the family court’s custody order.
Highly Contested Arizona Child Custody Case
The mother in this child custody case was an osteopathic doctor and the father a former medical doctor. Father’s license to practice was revoked for misconduct shortly after their child’s birth in 2010. He became a stay-at-home parent in 2012.
In August 2014, the child received a qualified autism diagnosis from a behavioral pediatrician who also recommended a standardized autism assessment be conducted. In September, the parents both sought custody orders and child support. Temporary orders for legal decision-making, parenting time, and child support were entered that November.
Assigned Child’s Best Interest Attorney and Parenting Coordinator
The Child’s Best Interests Attorney described this custody dispute as “one of the most divisive family court cases [he] has seen.” The level of conflict was so intense and constant the court-appointed Parenting Coordinator asked to resign for lack of progress. The parents’ interactions regarding their child’s mental and behavioral health concerns were particularly volatile.
Family Court’s Child Custody Order
Late 2016, the family court awarded parents joint legal decision-making authority in the child’s best interests. In the event they cannot agree as to their child’s medical, mental health, dental, and therapy, the father shall have final say on those matters. The court also ordered specific medical, dental, and mental-health treatments and therapies for the child. As to the child’s education, if parents cannot agree, then they are to mediate the issue before presenting it to the court for resolution.
The order specified:
“Parental decisions shall be required for major issues in raising the child and in meeting on-going needs. When they arise, each parent shall give good faith consideration to the views of the other and put forth best efforts to reach a consensus decision. … If they cannot agree after making a good faith effort to reach an agreement, Father shall have the ability to make the final decision as to medical, mental health, dental, and therapy issues.”
Does Final Say Turn Joint Authority into Sole Authority?
The issue before the Supreme Court was whether a parent’s right to final say following consultation with the other parent converts joint legal decision-making into sole legal decision-making authority. The Supreme Court answered in the negative.
This was a first impression case of statutory interpretation. ARS § 25-401 defines legal decision-making and parenting time. When parents share legal decision-making (previously known as joint legal custody), “neither parent’s rights or responsibilities are superior except with respect to specified decisions as set forth by the court or the parents in the final judgment or order.” ARS § 25-401(2).
The Court of Appeals erred in its interpretation of ARS § 25-401 by concluding that one parent’s “superior” decision-making authority over a specified matter was the same as the “sole right to decide” which is “the essence of sole legal decision-making” under ARS § 25-401(6). Vesting superior authority in one parent (giving the father tie-breaking authority) does not establish sole legal decision-making authority. Hybrid orders such as these “are common and commendable and do not convert joint into sole legal decision-making.”
Furthermore, ARS § 25-401(3) defines legal decision-making to include the legal right to make nonemergency legal decisions. A parent with joint legal decision-making, but not final say, would still have “the legal right, subject to consultation and the other parent’s approval, to establish a bank account for the child, take the child to a doctor, and exercise other nonemergency legal authority on behalf of the child.” The appeals court unnecessarily injected uncertainty into what has been “well-established practice” in Arizona custody cases.
The Supreme Court held the appeals court erred as a matter of law by equating final decisive authority over medical, mental health, dental, and therapy specifically as an award of sole legal decision-making. The family court’s custody order was affirmed and the decision of the Court of Appeals vacated in part.
Nicaise v. Sundaram, CV-18-0089-PR, 2019 WL 237534 (Ariz. Jan 17, 2019)
For precise language, please read the court’s original opinion. Legal citations have been omitted.
To learn more about legal decision-making in general along with joint authority under a parenting plan, visit our discussion about Arizona’s child custody details.
Common Child Custody FAQs
for more answers to frequently asked questions regarding child custody see our full page on the subject.
Are Legal Custody and physical Custody the Same Thing?
No, they are not the same and here is the difference between the two. The parent who is awarded legal custody has the right to make important decisions about the child’s upbringing, including religious affiliation, education, healthcare provider, and so on. When it comes to the child’s living arrangements, the parent who is awarded physical custody has the rights and responsibilities necessary to manage every aspect of the child’s day-to-day care.
Can we make our own custody agreement?
Yes. Parents who are able to compromise on their custody arrangements, without turning the decision-making over to the judge, are strongly encouraged to do so. So long as your agreement is in the best interests of the children, you and the other parent may settle custody and access issues by private agreement.
What is a parenting plan?
Arizona applies a co-parenting model over child custody. So when the parents seek joint custody, they are required by law to submit a written parenting plan to the court. The parenting plan provides a defined, predictable custody arrangement. It delineates the terms of access that both parents must abide by, and upon which the child will learn to depend. The plan is then made a part of the child custody orders issued by the court, rendering it fully enforceable by and against both parents.
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