9 Jan, 2018
In contentious divorce proceedings, the decision as to who will have primary responsibility for the children is often left up to the courts. The judge will decide which parent will be the primary decision-maker and what type of visitation will be allowed for the other parent. When both parents are competent in their duties and both display an authentic concern for the children’s best interests, the court may decide on joint legal decision-making.
These issues are hugely important to the people involved, but they can also be complicated and hard to understand. The following is a basic overview of some of the important concepts and terminology related to legal decision-making and the process of its determination.
What is legal decision-making?
Legal decision-making, as it pertains to divorce and child custody, denotes the legal right to make decisions regarding how a child lives and is raised. Decisions that fall under legal decision-making include things like education, religion and health care.
What is the difference between sole decision-making and joint decision-making?
If a parent is granted sole decision-making responsibilities, they are the only parent allowed to make choices for their children that fall within the jurisdiction of parental decision-making. That doesn’t mean the parent with sole legal decision-making powers can unilaterally decide the other parent can’t be involved in a child’s life whatsoever. The other parent is still entitled to parenting time unless the court determines that it is in the children’s best interest that they have no interaction with the other parent.
The other parent is also entitled to transparency in regards to decisions made by the legal decision-maker. They should still have access to any information or documentation about major decisions, such as health care and education.
If the court determines the other parent poses a physical, emotional, mental or moral threat to the child or children, they may be denied parenting time altogether, but proving that is intentionally difficult and requires a high threshold of evidence be provided to the court.
How do the courts decide who will be the primary legal decision-maker?
Ideally, parents will be amicable enough to negotiate things like parenting time and decision-making during mediation or another out-of-court marriage dissolution process. If they cannot do so, the judge presiding over their case ultimately has final say.
The first step in making this determination requires each parent to compile a parenting plan.
The parenting plan should detail how the parents would approach things like communication with one another, how disagreements in parenting decisions would be mediated should they arise and the exchange of children for parenting time.
The court’s primary concern is the well-being of the child or children, and they will make their decision accordingly. They will take into consideration factors such as:
- The relationship between the child or children and the individual parents
- Which parent is more likely to encourage and facilitate a good, healthy relationship between the children and the other parent
- The physical health of the parents
When possible, the court always prefers to grant joint legal decision-making. Awarding one parent sole legal decision-making duties is generally only done if the other parent has disqualifying marks against them that seriously call into question their fitness as a parent.
What are some things that will cause the court to grant one parent sole legal decision-making power?
- Domestic violence – if one of the parents has been convicted of domestic violence, they have the burden of compiling evidence and proving to the court they are not a physical, mental or emotional risk to the children
- Drug or alcohol abuse
- Sex offenses
- Murder or other violent crimes, especially against the other parent
Can the court’s legal decision-making decision be modified?
The parent who was denied legal decision-making responsibilities must wait a minimum of one year to file a motion to modify the court’s legal decision-making determination unless there are extenuating circumstances, such as an unhealthy or unsafe environment in the current legal decision-maker’s home.
The parent petitioning for modification is responsible for providing evidence that the existing legal decision-making agreement should be updated for the children’s best interests.
Is there anything else important I should know about legal decision-making?
- If the legal decision-maker is intentionally denying the other parent the parenting time to which they are entitled, that parent may file a petition in court. The parent against whom the accusations are being levied has a chance to defend themselves in court. If the court decides the legal decision-making parent is violating the court’s parenting time decision, they may be penalized.
- If one of the parents provides false information to sway the court’s decision in their favor, they may be sanctioned. The consequences may include:
o Requiring the party who knowingly made false statements or provided false evidence to pay for the other parent’s court costs and legal fees
o Additional fines
o Civil contempt
o Modification of the decision-making and parenting time in the other parent’s favor
- If the legal decision-making parent wants to relocate outside of Arizona or more than 100 miles away within the state, they must provide the other parent with written notice at least 60 days in advance. The other parent has 30 days to petition the courts to deny the legal decision-making parent’s relocation. The court ultimately decides whether the relocation is in the best interest of the child or children. It is the relocating parent’s responsibility to prove the relocation is in the child’s best interest.
Get Help with Your Divorce or Legal Decision-Making Case in Arizona
Phoenix divorce attorney Steven R. Garcia understands how important the happiness and well-being of your children is to you, and will use his years of experience and knowledge to fight for your parental rights. You can schedule a consultation to discuss legal decision-making, parenting time and other issues relating to divorce by calling (602) 277-2277.