Losing Custody of Your Kids Is More of a Reality Now

After March 1, 2018, it is now easier than ever to lose custody (legal decision-making) of your children in Arizona. First, some quick context. We no longer use the word “custody” in divorce cases in Arizona. We use the terms legal decision-making and parenting time.  Legal decision-making authority gives a parent or parents the power to make the big choices in life, such as a child’s doctor, medical treatment options, school choice, religion, etc.  Parenting time is the designation of certain days or weeks to each parent throughout the month/year.  

Ok, back to how you can lose legal decision-making. It has been commonplace for courts in Arizona, Maricopa County in particular, to grant both parents joint legal decision-making for their children. As you can imagine, two divorced people cannot always agree on a particular issue for their child(ren). So, what happens when two people who have joint authority come to an impasse? Well, those two people have often ended up back in court, asking a judge to pick one of the parent’s position. In other words, divorced couples have often returned to court so the judge can be the tiebreaker.  

No More Parenting Coordinators

In the past, we used to use Parenting Coordinators (PC) for this kind of thing. The court would appointed a PC and then that PC would listen to the parents and make a recommendation to the court, which 99 times out of 100 the court would adopt.  Then the family law rules changed and the court can only appoint a PC if both parents agreed. The catch is that the rule also changed that made the PC even more powerful (more like an arbitrator with binding decisions). So guess what? Nobody wanted a PC anymore. I used to be a PC. When the rule changed I immediately stopped trying to be a PC (which takes some ongoing educational requirements) because I saw the writing on the wall: nobody was going to want a PC in their case anymore.  In the two years or so since the rule changed I have seen zero PC appointments.

After the death of the PC appointments, the Court shifted even more to “final say.” Basically, to avoid parents coming back to court all the time, judges started giving one parent final-say authority. The parents were still charged with trying to make a joint decision in good faith. However, if they came to an impasse, then the parent with final-say authority could be the tiebreaker and make the choice. Final-say orders have been around for a long time, but they certainly became more prevalent in recent years, especially with PC’s being put out to pasture.  

In cases where neither parent has final-say authority (nor sole legal authority), the courts continue to get involved and have to be the tiebreaker for common choices, most typically where a child will attend school and which doctor or treatment the child will receive. As you can imagine, this is taxing on the court system to have people repeatedly coming back to court.

All of that has come to an end as of March 1, 2018.

No More Final Say

The Arizona Court of Appeals published a case called Nicaise v. Sundarem on March 1, 2018.  Very briefly, the parties in that case were highly contentious in their parenting of their only child. The trial court gave one party legal decision-making with final say. As has been the norm, the trial court ordered the feel-good requirement of making a good faith effort to make joint decisions before exercising final-say authority. Then, instead of giving either parent the authority to choose the child’s school, the trial court ordered which school the child should attend, which was based on geographical factors (where the child lived).  

On appeal, the Court of Appeals held that (1) joint legal decision-making with one parent having final-say authority on certain issues must be interpreted as awarding sole legal decision-making on those issues; and (2) the court may not substitute its judgment and make parenting decisions for parents when they are unable to agree. In layman terms, final-say doesn’t exist anymore. It’s either joint or sole, although the court can give sole on certain aspects of a child’s life such as medical or education. Also, the court is no longer allowed to be the tiebreaker and making a choice for the parents. Instead, the court must authorize one parent to make the choice.

So what does this mean for you? Well, as I’ll explain, this basically means that you are going to have to play nice and try really hard to get along with your ex or soon-to-be ex on parenting issues. Otherwise, you run a risk of losing any legal authority over your child, at least over certain issues such as medical or education.

With final-say no longer an option courts will undoubtedly start to give out sole legal decision-making to one parent more and more, even if the courts were seemingly reluctant to do so in the past. There are various aspects to a child’s life and legal decisions for that child’s life. Some states use “spheres” to compartmentalize legal decisions for a child, such as medical, educational, personal, and religion.

Arizona hasn’t gone so far to define or specifically categorize those spheres. However, in practice, we do often see judges giving final-say authority to one parent for a particular area, such as medical decision, or educational decisions. Thus, I expect that the courts will continue in that pattern, only replacing final-say with sole for one parent. This will be very bad for some parents because previously a parent with joint lega but without final-say at least had input into a legal decision for a child.  Or at the very least, on paper that parent had some say about the child’s legal choices.  Now, that will be removed completely if the other parent is given sole legal decision-making.  

The removal of final-say is only half of this story. The other half is the court no longer being able to make choices on behalf of the parents. Again, the practice has been to often return to court and have the court be the tiebreaker for difficult, albeit common choices, such as where a child will go to school (or whether to change schools, or change doctors, etc.).  The court now can only give authority to one parent to make those decisions, not make the decision for the parents. Consequently, this should also increase the likelihood that the courts will be giving sole legal decision-making to parents more often, even if it is parsed into various categories such as medical and education.  

Example of How Someone Can Lost Legal Decision-making

So, let’s take a look at a hypothetical based on the new legal landscape, which should help you visualize how this change in the law will affect you, what you should be doing in your own case and life, and how to avoid losing legal decision-making for your kid(s).

Let’s assume Mom and Dad are relatively good people, but they simply can’t agree on anything. They have one child together. Mom wants to homeschool the child, instead of staying in the current school. Dad wants the child to stay in school with his friends. Mom will repeatedly keep the child home from school on her parenting days because the child is ostensibly sick. The child continues to miss assignments because of the absences and is starting to fall behind. Mom wants the child vaccinated per the child’s pediatrician’s recommendation. Dad doesn’t want the child vaccinated and has made several “scenes” at the pediatrician’s office, making everyone there upset. The child’s pediatrician has recently told Mom and Dad that she will no longer have child as a patient because of Dad’s behavior. This is now the second time the child’s doctor will need to be changed because of Dad’s interventions. Because the parents cannot agree and continue with their respective antics, the child is failing school because of the excessive absences and missed assignments from those absences, and is one year behind on the recommended vaccinations.

Based on the limited info above, if you were the judge, and you could only give joint (no tiebreakers) or sole decision-making to the parents, what would you do? Depending on your own beliefs and biases, you would probably give Mom sole over medical and Dad sole over education. In any event, you would probably not continue letting the child get caught up in the middle and continue the stalemate by allowing joint legal between Mom and Dad to continue, right? This is a small example, but a common one I see all the time. This example should also alert you to the problem that each individual judge has his/her own biases, which creates even more risk if you have to go to court instead of settling.

Hopefully, this example should illustrate to you how courts will be thinking going forward. It should also illustrate how you can lose legal decision-making if you are not making sound decisions for your child and/or playing along nicely. Now more than ever, divorcing parents should be on notice that it is easier than ever to lose legal decision-making. The court will no longer be giving out final-say and will no longer be breaking ties between parents. When confronted with an impasse on important decisions the court’s only real option is to select which parent will have sole legal authority for the child on that issue going forward. This means the court will be selecting the “better” parent, or as sometimes may be the case, the lesser of two evils. Divorcing (or divorced) parents should be on high alert that they need to start playing nice, or risk losing their rights to make decisions for their child. You have been warned.  

Update: January 2019

As of mid to late January 2019, the Nicaise v. Sundaram ruling by the Court of Appeals on “final say” has been reversed by the Arizona Supreme Court. You can read the AZSC’s opinion here. In brief, the AZSC interpreted the statutes differently, reasoning that the “exception” language in the definition of joint legal decision-making allowed for the courts to award one parent “final say” authority. As a result of the ruling by the AZSC, the assessment above has now returned to the way it was: the courts being able to award one parent final say. Because of this, in my opinion, I believe that most judges will return to the practice of awarding one parent final say when the circumstances warrant it. Additionally, I believe that the courts (for the most part) will be generally reluctant to award sole legal decision-making to one parent since the middle ground of “final say” is once again an approved option.

That being said, the cautions above still apply in the sense that if the court finds you to be less cooperative, or have more strikes against you in the statutory factors, then the court will probably be more likely to award your spouse “final say” authority, if not even sole legal still.