Deciding What’s Best for Your Child: How A Parent Awarded Final Say Over an Issue in a Joint Legal Decision-Making Order Can Exercise Tie-Breaking Authority
By Sarah Manning, Esq.
In family cases, the court will award legal decision-making to one or both parents—termed “sole” legal decision-making for one and “joint” for both. When the court orders joint legal decision-making, “both parents share decision-making and neither parent’s rights or responsibilities are superior.” A.R.S. § 25-401(2). Stated differently, one parent’s opinion on a child-related matter does not trump the other parent’s. But there’s an exception. The court may award “final” legal decision-making to one parent as to a certain issue. See A.R.S. § 25-401(2). In other words, while both parents exercise joint legal decision-making over their child, one parent has the “superior” decision-making authority over, say, the child’s medical matters. The family court has used different phrases to describe this “superior” decision-making authority, including “final decision-making authority,” “final say,” “presumptive decision-making authority,” and “tie-breaking authority.”
The Arizona Supreme Court has made clear that final decision-making authority does not equate to “sole” decision-making authority. See Nicaise v. Sundaram, 245 Ariz. 566 (2019). In Nicaise, the family court awarded the parents joint legal decision-making authority with father having final say over the child’s medical, mental health, dental, and therapy matters. The Supreme Court called this kind of “hybrid” order “common and commendable.”
In clarifying the types of decision-making authority, the Supreme Court highlighted an essential step a parent must take before exercising his or her final authority over an issue: the parent must first make a good faith effort to reach an agreement with the other parent on the matter. In Nicaise, for example, father’s legal decision-making authority was conditioned upon his good faith efforts to reach a consensus with mother. But the good faith requirement does not fall solely on the parent with final authority. The Supreme Court also stated that “a parent with joint legal decision-making authority who does not have final legal decision-making authority on an issue under [A.R.S. § 25-401(2)] would maintain the legal right, subject to consultation and the other parent’s approval, to establish a bank account for the child, take the child to a doctor, and exercise other nonemergency legal authority on behalf of the child.”
In a September 2024 memorandum decision, the Court of Appeals reiterated this good faith requirement for both parents. See Campbell v. Newell, No. 1 CA-CV 24-0042 FC, 2024 WL 4298247 (Ariz. App. Sept. 26, 2024). In Campbell, the family court ordered each party to “give good faith consideration to the views of the other and put forth best efforts to reach a consensus decision and engage in reasonable consultation” before the father could exercise his final authority over the child’s education and medical needs. But because he failed to do so, and for other reasons, the family court modified the order. The Court of Appeals affirmed.
In an October 2024 memorandum decision, the Court of Appeals agreed with a father’s contention that, when a court orders joint legal decision-making authority, it cannot grant final decision-making authority to one parent for all decisions. See Webber v. Webber, No. 1 CA-CV 23-0669 FC, 2024 WL 4441659 (Ariz. App. Oct. 8, 2024). In Webber, the family court awarded mother final decision-making authority for “major issue[s],” which would contravene Nicaise and A.R.S. § 25-401(2) if the issues were not specified. The Webber Court made clear that “a court should provide some explanation to make it clear to the parties and reviewing court the exact extent to which the court has vested superior decision-making authority in one parent.” Ultimately, the Court of Appeals found that the family court’s order satisfied this standard because it specified that mother would have final say over major issues relating to the children’s medical and schooling needs.
In short, a parent’s tie-breaking authority is predicated on a good faith consultation and is limited to the issue(s) specified by court order.
So, what is a parent awarded final authority over an issue required to do? According to the Court of Appeals, the good faith consultation requirement simply means making best efforts to engage in reasonable discussion with the other parent and giving good faith consideration to his or her opinion on the matter. This may be done through regular communication modes or through the parents’ attorneys. If the parent with final authority makes a good faith effort to reach a consensus as to, say, who will be the child’s physician, but he or she cannot reach an agreement with the other parent, the parent with final authority has the legal right to decide the matter. But if the parent with the final authority fails to engage in a good faith consultation, the court may have grounds to change the order.
The Court of Appeals has described final decision-making authority as “an additional tool available to the [family] court in resolving issues that concern legal decision-making.” Ward v. Smith, No. 1 CA-CV 20-0008 FC, 2021 WL 872128 (Ariz. App. Mar. 9, 2021). It is intended to facilitate progress when there is a deadlock between the parties. But final decision-making authority must be exercised fairly by the party holding it; otherwise, it will not serve its intended purpose and may be revoked or amended.