Legal Decision-Making (custody)

Arizona Custody statutes changed in 2013, and Keith Berkshire is not only familiar with the changes, but was part of the committee of the legislature that made the changes.  This first-hand experience makes the Berkshire Law Office familiar with all the intricacies of Arizona custody and parenting time laws. 

Legal decision-making (custody) is defined under A.R.S § 25-401 as which party can make legal decisions regarding the children. These decisions do not affect parenting time as described below, but rather impact legal decisions such as medical decisions, educational decisions, and in certain circumstances, religious decisions.

Legal decision-making in Arizona is determined under A.R.S. § 25-403, which requires the court to look at the following areas:

A. The court shall determine legal decision-making and parenting time, either originally or on petition for modification, in accordance with the best interests of the child.  The court shall consider all factors that are relevant to the child's physical and emotional well-being, including:

1.       The past, present and potential future relationship between the parent and the child. The court will look at the bond between the child and each of the parents and can also look at who is the primary caretaker to the child.

2.       The interaction and interrelationship of the child with the child's parent or parents, the child's siblings and any other person who may significantly affect the child's best interest.

3.       The child's adjustment to home, school and community. The court can look at the living environment that each parent provides to the child which includes an analysis of the safety of the home environment, the stability, and whether the parents provide a nurturing environment to the child.

4.        If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time. In Arizona, custody preference is not given the mother, even in situations where the child is very young.  The court can, however, consider the mental health of one of the parents and its effect on the ability of that parent to effectively parent the child.  The court will also look at the special health needs of the child and the parent’s ability to care for those needs.

5.       The mental and physical health of all individuals involved.

6.       Which parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent. This paragraph does not apply if the court determines that a parent is acting in good faith to protect the child from witnessing an act of domestic violence or being a victim of domestic violence or child abuse.

7.       Whether one parent intentionally misled the court to cause an unnecessary delay, to increase the cost of litigation or to persuade the court to give a legal decision-making or a parenting time preference to that parent.

8.       Whether there has been domestic violence or child abuse pursuant to section 25-403.03.

9.       The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time.  The court does not allow either parent to attempt to get more or less parenting time by offering more or less money in exchange for parenting time. 

10.   Whether a parent has complied with chapter 3, article 5 of this title.

11.   Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02.

Joint Legal Decision-making:

When the parties are joint legal decision makers, they are required to make all significant legal decisions together.  This means choosing schools, doctors, and other legal decisions must be made jointly, with neither party having any veto power.  When parents have Joint Legal Decision-making, neither parent’s rights are superior to the other parent’s rights.

Joint Legal Decision-making with Final Decision-making:

In some cases the Court will appoint one of the parties to have “final decision-making” authority on a specific issue, such as medical decisions.  Although one party may have this authority, the parties are still required to consult in good faith prior to a decision being made.  Our family law attorneys can describe what circumstances make this type of authority necessary.

Sole Legal Decision-making:

Sole legal decision-making is when one party can make all legal decisions without consultation with the other parent.  This does not mean that the parent with sole decision-making can determine what parenting time the other parent gets, but rather is limited to decision making.  Sole legal decision-making is often difficult to obtain, and our attorneys can describe the requirements.


"Parenting time" defines what days of the week each parent spends with the children.  Parenting time is also often referred to as "physical custody."  A parenting plan is the document that includes the day to day parenting time agreement as well as specific holidays, vacations, and other events.  The crafting of an enforceable and comprehensive parenting plan is what separates quality attorneys from those not familiar with recent developments.  Many parenting plans ignore potential areas of conflict and don't foresee issues that may arise.  We can help craft a plan that will be in the best interest of your children, while remaining enforceable.