What is legal decision-making? What types are there?
Legal decision-making is the right to make major decisions about your child, including education, healthcare, and religion. Some types of decisions included in the right of legal decision-making are: where your child goes to school, whether your child gets surgery, and what kind of religious training your child receives. There are two types of legal decision-making: sole or joint.
Note: In accordance with federal codes and other states, legal decision-making means “legal custody.”
What was known as physical custody is now associated with parenting time (what used to be known as visitation). The times and places of parenting time, the amount of parenting time for each parent, and which house the child resides in are determined in what is called a “parenting plan.”
What options are there for legal decision-making and parenting time?
Sole Legal Decision-Making. This is when one parent is responsible for making the major decisions about the care and welfare of the child. Although both parents may talk about these issues, only the parent who is granted sole legal decision-making has the authority to make a final decision if the parents cannot agree.
Joint Legal Decision-Making. This is when each parent has the same rights and responsibilities for making major decisions regarding the care and welfare of the child. With joint legal decision-making, neither parent’s rights are superior to those of the other parent. In the best interest of the child, the court may direct that certain decisions be made by only one parent, even when joint legal decision-making is granted. Having joint legal decision-making does not mean that the parents also have equal parenting time. Joint legal decision-making usually involves the parents talking with each other and making decisions jointly. Since cases of domestic violence involve control, fear and an imbalance of power, joint legal decision-making usually is not the best option.
Parenting Time. This refers to the schedule of time that each parent will have with their child and where the scheduled time will take place. A parent who is not awarded sole legal decision-making or who has joint legal decision-making is entitled to some form of meaningful parenting time with their child. However, joint decision-making does not mean the parents will automatically have equal parenting time. If the judge finds that parenting time could endanger the child, such as if there has been past domestic violence or child abuse, the court can order no parenting time or supervised parenting time.1
1 A.R.S. § 25-401; See also A.R.S. § 25-403.02 for more information about parenting plans
What are the differences between legal decision-making and parenting time?
Legal decision-making can include the right to make decisions about your child (this may be called legal custody in other states) and the right to have your child live with you (this may be called physical custody in other states). Parenting time refers to the time that each parent spends with his/her child. It is possible that a parent can have joint legal decision-making, which gives both parents the right to make important decisions about their child, even if the child does not live with that parent.
1 A.R.S. § 25-401
Should I start a court case to ask for supervised visitation?
If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for legal decision-making or parenting time, you may not have much to lose by asking that the parenting time be supervised if you can present a valid reason for your request (although this may depend on your situation).
However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised parenting time. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the parenting time supervised and how long supervised parenting time would last, based on the facts of your case.
In the majority of cases, supervised parenting time is only a temporary measure. Although the exact order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised. If the judge does order that supervision be provided by an individual, you may want to research who provides supervised visitation near you and make sure it will be a place that will be able to provide safety to you and your children. A reminder: at the end of a case, the other parent may end up with more frequent and/or longer parenting time than s/he had before you went into court or even receive some form of legal decision-making authority if s/he is perceived as having the ability to safely be around the child/ren.
In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for legal decision-making and supervised parenting time is appropriate. To find out what may be best in your situation, please go to AZ Finding a Lawyer to seek out legal advice.
What are the advantages and disadvantages of getting a legal decision-making and parenting time order?
There are many reasons people choose not to get a legal decision-making and parenting time order from a court. Some people decide not to get a legal decision-making and parenting time order because they don’t want to get the courts involved. These people may have an informal agreement that works well for them or may think going to court will provoke the other parent.
There are also many advantages to getting a legal decision-making and parenting time order:
- The right to make decisions about your child and
- The right to have your child live with you.
If you decide not to get a legal decision-making and parenting time order, then you and the other parent may likely have equal rights to making decisions and living arrangements. The exception to this can be when paternity has not been legally established. To understand whether paternity has been “established” for your child, see below How is paternity (legal fatherhood) established?
Note: You do not have to have a legal decision-making and parenting time order to file for child support.
How is paternity (legal fatherhood) established?
There are several ways to establish paternity (legal fatherhood) in Arizona. In some situations, either parent will file a petition in court to have paternity legally established. In other situations, filing a court petition is not necessary because paternity is presumed (assumed).
Note: The father, the child’s guardian, or the state may also file a petition to establish paternity.
Paternity is presumed (assumed) when:
- The man and the mother of the child were married at any point in the ten months immediately before the birth of the child or the child was born within ten months after the marriage ended;
- A genetic test (DNA test) states that there is at least a 95% likelihood that he is the father;
- The birth certificate of a child born to an unmarried woman is signed by both parents; or
- The parents voluntarily acknowledge paternity in a signed statement that is notarized or witnessed.1
Note: Even if one of these situations apply, the paternity may be rejected by the judge if there is “clear and convincing” evidence that leads the him/her to believe differently.2
Paternity can be established in court when a woman who is pregnant or already gave birth to the child files a petition to establish paternity and:
- The father does not file a response to the court papers or appear in court;
- The father files a response admitting paternity;3 or
- The court orders genetic tests (DNA tests) and either:
- those tests show that there is at least a 95% likelihood that he is the father;4 or
- the father, for no good reason, doesn’t take the DNA test.5
1 A.R.S. § 25-814(A)
2 A.R.S. § 25-814(C)
3 A.R.S. § 25-806 and § 25-813(1)
4 A.R.S. § 25-807(D)
5 A.R.S. § 25-813(2)
What is mediation?
Mediation is a process by which parents attempt to reach an agreement relating to legal decision-making and parenting time of their child. Mediation usually involves the help of a trained professional (a “mediator”) who guides the discussion process between the parents and tries to come to a compromise that both parents are happy with. Mediation is not required for legal decision-making and parenting time cases in Arizona.
Mediation in domestic violence situations often does not work since one parent is usually afraid of the other and may not feel comfortable or safe disagreeing with the abusive parent. If you are or have been the victim of domestic violence, make sure the judge knows this. Arizona law does not allow the judge to order joint counseling in a domestic violence situation. If the judge does so, you may be able to file a petition to prevent it.1 However, if you are a victim and you choose to go to mediation, you can attend the mediation proceeding at a different time and location from the abuser.2
1 A.R.S. § 25-403.03(G)
2 See Arizona Coalition Against Domestic Violence, Advocates in Domestic Violence Cases: A Lay Legal Advocates’ Guide to Arizona Law (2012)