Fundamental Right to Parent, Part II, and — update on changes to Arizona’s custody statutes

by Annette Burns on December 11, 2012

A few months ago, a post covered some of the changes to Arizona’s custody statutes (ARS 25-401 et  seq) that are coming up on January 1, 2013.     Now that that date is looming, it’s time to discuss the changes again.

The statute changes (deletes) all references to “custody” and replaces that word with “joint legal decision-making”.  This applies to all statutes, parenting plans, and court orders for custody or parenting time (including modifications) that are entered after January 1, 2013.     So effective January 1, no new court order will refer to sole custody or joint legal custody.

(Everything in ALL CAPS are direct quotes from the new statute)

The definition of Joint Legal Decision-Making (JLDM) is pretty straightforward:   “JOINT LEGAL DECISION-MAKING” MEANS BOTH PARENTS SHARE DECISION-MAKING AND 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)    That sounds like joint legal custody as we’ve known it for years.

The definition of “Legal Decision-Making” (LDM) is a bit more problematic:  “”LEGAL DECISION-MAKING” MEANS THE LEGAL RIGHT AND RESPONSIBILITY TO MAKE ALL NONEMERGENCY LEGAL DECISIONS FOR A CHILD INCLUDING THOSE REGARDING EDUCATION, HEALTH CARE, RELIGIOUS TRAINING AND PERSONAL CARE DECISIONS. FOR THE PURPOSES OF INTERPRETING OR APPLYING ANY INTERNATIONAL TREATY, FEDERAL LAW, A UNIFORM CODE OR THE STATUTES OF OTHER JURISDICTIONS OF THE UNITED STATES, LEGAL DECISION-MAKING MEANS LEGAL CUSTODY.”      Decisions about a child’s education, health care and religious training are the traditional areas for joint decisions.   But what is this “personal care” addition?   Does this mean the parents have to cooperate regarding more routine, day-to-day things about the child (such as nutrition, hygiene, bedtimes)?

Probably not.    In any JLDM Agreement, each parent will be assigned parenting time, and fortunately parenting time is explicitly defined in the statute as well:

“PARENTING TIME” MEANS THE SCHEDULE OF TIME DURING WHICH EACH PARENT HAS ACCESS TO A CHILD AT SPECIFIED TIMES. EACH PARENT DURING THEIR SCHEDULED PARENTING TIME IS RESPONSIBLE FOR PROVIDING THE CHILD WITH FOOD, CLOTHING AND SHELTER AND MAY MAKE ROUTINE DECISIONS CONCERNING THE CHILD’S CARE.”   ARS 401(5) (Emphasis added)

During parenting time, responsibility for decisions concerning food, clothing, shelter, and “routine decisions” are specifically assigned to one parent—the one who has the child.    That’s consistent with past law, but leaves open the question of what is meant by defining JLDM as including “personal care decisions” for the child.    At this point, no one knows the answer to that question.  A fair guess is that the new definitions should be helpful to parents in initially understanding their rights and responsibilities but professionals will see little difference in the way these statutes are applied to Joint Legal Decision-Making Agreements.

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