UPDATE: This Court of Appeals decision was reviewed by the Arizona Supreme Court which issued a new decision in January 2019. The Supreme Court’s decision substantially changed the rulings in the Court of Appeals decision and the new Supreme Court decision is discussed here.
Jordan v. Rea regarding school choice can’t be relied on as authority that a superior court should be making school choice decisions when parents are unable to do this. Nicaise v. Sundaram, (March 1, 2018, Arizona Court of Appeals, Div 1) explicitly states, finally, that “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 has been the position of sitting superior court judges for years, other judges have felt that they have to make school choice decisions when the parents won’t, for the children’s best interests.
Nicaise established what many in the family law arena had opined for some time: An award of joint legal decision-making with final authority vested in one parent is really an award of sole legal decision-making. “While the court may require . . . that the parents consult with each other in good faith . . . .” the court may also designate one parent as final decision maker. “When the court creates those exceptions (final decision making to one parent), it effectively creates orders for sole legal decision-making . . .”
The Court of Appeals 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 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.
Presumably, as this decision established that an award of final legal decision-making is the same as an award of sole (see the very first sentence of the opinion), then it follows that mediation cannot be required in cases of legal with final LDM anymore. [Footnote 3]
