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Removing the Term “Child Custody” from the Law

Just hearing the term “child custody” can cause divorcing parents to experience unease and anxiety. And when the anxiety builds, conflict often begins to rise. Due to the negative connotations associated with the term “child custody”, Arizona eliminated it from the domestic relations statutes in 2013. Additionally, the term “physical custody” was replaced with “parenting time,” and the term “legal custody” was replaced with “legal decisions-making authority”.

Shift in Arizona Law

In 2018, the Arizona Court of Appeals dramatically shifted how the family courts resolve legal decision-making authority when parents disagree on a major issue, when deciding Nicaise v. Sundaram. It is important for all divorcing, divorced or separated parents to be aware of this shift.

Defining Legal Decision-Making

A parent’s ability to make major decisions regarding their child’s care and upbringing is known as legal decision-making authority. There are three major aspects to legal decision-making authority:

  • medical care,
  • education, and
  • religious training.

Routine and daily decisions – such as a child’s bedtime or what they eat for dinner – are not considered major decisions for legal decision-making authority purposes and each parent may make routine decisions during their own parenting time.

Major decisions regarding a child’s health care can include items such as whether or not the child: receives ongoing medical care, takes prescribed medications, or undergoes surgery. Educational matters can include: details of a child’s individualized education plan (IEP), whether or not the child will receive educational therapy or where the child will attend school. Religious decisions may include whether or not there is a baptism, a confirmation ceremony, or a bar mitzvah.

There are three types of legal decision-making authority:

Joint Legal Decision Making Authority:

Meaning parents have equal authority to make decisions;

Sole Legal Decision Making Authority:

Meaning one parent has superior rights to make decisions; and

Final Say Legal Decision Making Authority (Joint with one Parent Having Final Say):

Meaning parents must act in good faith and confer with one another regarding decisions before the parent with final say makes the ultimate decision.

It is important to note that Sole, Joint, or Final Say legal decision-making authority may vary for each topic.


Divorced parents have a child with special needs. One parent is intimately familiar with the child’s IEP and has Sole authority over educational matters. The parents share Joint authority for religious matters, and Final Say authority for medical matters. The Final Say authority means the parents will confer, but the designated parent will make the ultimate decision regarding medical matters.

Generally, the Court will presume that joint legal decision-making authority is in the best interest of the child. However, this presumption will not apply in circumstances involving a history of domestic violence, child abuse, alcohol or substance abuse, a recent conviction for alcohol or substances abuse, or other compelling reason. Unless one of these circumstances applies, the court will likely award joint legal decision-making authority. As such, it is not surprising that incidents of non-agreement may occur between parents’ who share joint legal decision making authority.

“I’m so glad we went the mediation route.”

“Well-organized, supportive, compassionate and effective: I’m so glad we went the mediation route. I was completely satisfied with the results.

Their level of skill and compassion surpassed what I expected during the difficult process of divorce.”


Joint Legal Decision-Making Authority- Finding Agreement

Most parents have joint legal decision-making authority, meaning that they have an equal say in major decisions regarding their children’s education, religion upbringing and medical care. Previously, when parents could not agree, they would each plead their case to the court and the judge would decide the matter for them. However, after the Nicaise ruling, Arizona judges are getting out of the business of ruling on specific parenting issues.

In order to keep parents from returning again and again over related issues, Nicaise orders judges to grant a parent “sole legal decision-making authority” or “final say” over not only the issue currently before them, but all future issues of the same area or category (e.g., educational decisions). Parents now risk losing their ability to make important decisions regarding their child entirely, if the judge does not rule in their favor on a single issue. With so much at stake, parents are encouraged now more than ever to make every effort to reach mutual agreements outside of court rather than litigating their issues. Parenting Mediation can help parents to reach mutually beneficial agreements that address their unique needs.

Where Will Timmy Go to School?

Mom and Dad are divorced. Both love their son, Timmy, and want what’s best for him. Unfortunately, Timmy is struggling in school. Dad thinks it would be best for Timmy to switch to a different school. He believes that different teachers and a new environment, with state-of-art equipment, would give Timmy that fresh start that will help turn his grades around. Mom could not disagree more. She thinks that taking him away from his friends, and putting him in a school where he doesn’t know anyone, will be emotionally taxing and result in his grades plummeting even further. Mom and Dad must ask themselves: Is asking a judge to weigh-in worth potentially losing my right to have any say regarding Timmy’s education going forward?

The Nicaise ruling ended a judge’s authority to rule on what school is best for Timmy. Instead, the judge would simply grant Sole or Final Say authority over all education decisions to either Mom or Dad. Resulting in one of the devoted parents no longer having authority to make major decisions regarding their child’s education.

Parents Reach Agreements and Avoid Court

At first glance, this approach, to legal decision-making authority in the event of a disagreement between co-parents, can seem quite extreme or harsh. However, decades of research shows that unresolved and ongoing conflict between parents is what may result in psychological harm to children.

Ongoing conflict after divorce can have a devastating impact on a child and his/her development, and is the primary cause of psychological harm to children whose parents are divorced. This may be the court’s way of attempting to resolve this issue, regardless of its impact on parent’s rights. If the need to fight is eliminated, they may better serve the best interests of the child.

Regardless of the intent, it certainly discourages parents from continuing to battle in court and encourages them to work together to resolve parenting issues.

Maintain Your Authority Through Mediation

Parents can avoid losing legal decision making authority and avoid court all together by choosing to mediate. Our experienced mediators will help you to peacefully resolve legal decision-making issues. In mediation, you avoid relinquishing control to a judge and you remain in control over your agreements.

Our professional mediators assist co-parents in reaching mutually acceptable agreements for any parenting disputes, which helps to reduce conflict and protect the children. A mediator will explain the law and potential court outcomes. Generally, once parents are aware of what could happen in the courts, they are determined to resolve the issues at hand with the help of a mediator.

The mediator will guide discussions on each and every issue and facilitate a healthy dialogue. Additionally, it is important to know that mediation tends to take significantly less time than traditional litigation and is also much more cost-effective. Mediation offers a quick, affordable resolution, that means parents avoid the courts and avoid the chance of losing their legal rights.

Mediation will help you and your co-parent to communicate in a productive way. To keep conflict as low as possible, to protect your kids, consider mediation. It is the healthier option for resolving disputes. The Aurit Center is here to help you every step of the way.


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