[originally posted MARCH 2, 2018, updated January 21, 2019]
Last March (2018) the Arizona Court of Appeals issued its decision in Nicaise, defining that a trial court’s authority to direct parental decisions was very limited. That holding remains in effect as good law in Arizona. But on January 17, 2019, the Arizona Supreme Court limited another portion of the Nicaise Court of Appeals’ decision. The Court of Appeals’ finding that an award of joint legal decision-making with final authority vested in one parent was really “sole” custody was reversed by the Supreme Court. A trial court’s assignment of one parent as “final” decision-maker in a joint legal decision-making case is NOT the same as awarding one party sole custody.
Fortunately, the Supreme Court’s decision clarifies a muddy area of the law that’s existed since March 2018. It’s probably the case that some awards of sole custody that occurred in the last year MIGHT have been awards of joint decision-making with final to one parent, because of the (now vacated) Court of Appeals decision. Going forward, trial court judges know they can issue awards of joint legal decision-making with final (tie-breaking) authority to one parent and will know that they’ve preserved some semblance of consultation and discussion between the parents who can attempt to reach an agreement. With an award of sole decision-making, the parents might not even try, as the sole decision-making might simply jump to the decision.
It remains the case that the former case of Jordan v. Rea regarding school choice can’t be relied on as authority that the trial court can make school choice decisions when parents are unable to do this. This is a holding in Nicaise that was NOT overturned by the Supreme Court. The Nicaise decision explicitly statedthat “the court’s statutorily prescribed role is not to make decisions in place of parents, but to decide which fit parent or parents should make such decisions.” While this had been the position of many trial court judges for years prior to Nicaise, other judges had previously felt that they should make school choice decisions when the parents won’t, for the children’s best interests.
The Court of Appeals Nicaise decision had also carved out (although in a Footnote) some fairly bright-line rules about what the court can order the parents to do to try and reach a decision. “The court’s requirement that the parents attempt to agree on parenting issues is a permissible aid to parents in their exercise of joint legal decision-making (emphasis in original). Further, the Court may order that parents with joint legal decision-making engage in court-sponsored mediation services. . . .” [Footnote 3]
But, the trial court may not order the parents to engage in mediation if one parent has sole legal decision-making. The court may in those cases still order that the parents attempt to agree in good faith on child decisions. And a failure to act in good faith could lead to a change in legal decision-making authority. But, the court cannot require the parties to engage in mediation services when one parent already has final (or sole) decision making authority.