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Joint Custody and Legal Decision Making

Categories: Family Law, Article

AZ Court of Appeals on custody and legal decision making for children

In Hull v. Wesley [1] the Division One of the Arizona Court of Appeals addressed legal decision-making for children in the context of pain medication.  These medications were taken during the pregnancy.  The child was born addicted to the pain medication and suffered withdrawal and complications after birth. The Appeals Court opinion is a memorandum decision and it is therefore not precedential; it may however be cited for persuasive value subject to limitations [2]

Complex Child Custody Issues: Pain Medications and Alcohol 

Hull and Wesley are the unwed parents of a child born in 2014. Prior to her pregnancy, Wesley suffered serious back injuries and was prescribed pain medication which she continued to take during the pregnancy resulting in the child being born addicted to the pain medications and experiencing withdrawal and complications after birth. Since the parties lived together, they agreed to joint legal decision-making with no child support to be paid. 

Shortly after the birth – and with the support of medical professionals - Hull sought and was awarded emergency sole legal decision-making, parenting time and child support orders. Following hearing, these orders were confirmed and Wesley was ordered to submit to random weekly drug tests and to participate in counseling and rehabilitation treatment. 

One year later, the Court conducted an evidentiary on Hull's underlying petition to modify legal decision-making, parenting time and child support. The court ordered joint legal decision-making authority and created a detailed parenting time plan predicated upon Wesley participating in substance-abuse classes and counseling. Wesley's parenting time was to be supervised by her parents but would become unsupervised and generally increase in 2016 if Wesley continued the classes and counseling. No child support was ordered after application of the self-support reserve test. 

Wesley appealed the trial court's decision. 

Issues Address by Arizona Court of Appeals

1. A.R.S. § 25-403.04(A) Presumption.A.R.S. § 25-403.04(A) creates a rebuttable presumption that is it contrary to a child's best interest to award legal decision-making authority (sole or joint) to a parent who has abused drugs or alcohol within twelve months previous to the filing. The presumption can be rebutted and the Court "shall consider, at a minimum, any conviction of a drug offense with the past five years, the result of random drug testing for the past six months, and the results of alcohol or drug screening [3]. Hull argued that Wesley had failed to rebut the presumption, and therefore, Wesley should not be awarded legal decision-making authority.  

In support of his position, Hull pointed to the trial court's findings that (a) Wesley had a substance-abuse problem; (b) Wesley was possibly addicted to her prescription pain medications and other non-prescription drugs; (c) Wesley's random drug tests conducted between the child's birth and the time of trial showed the presence of alcohol, opiates, amphetamines and other prescription drugs; (d) Wesley stole prescription drugs from her family members; (e) Wesley refilled one prescription twice; (f) Wesley presented a "highly suspicious story" regarding kidney pain at an emergency room; (g) Wesley drank alcohol while taking prescription pain medication despite instructions not to do so; (h) Wesley had prior arrests for driving under the influence; and (i) Wesley admitted driving under the influence after taking prescription pain medication. 

The Court of Appeals reasoned that A.R.S. § 25-403.04(B) requires only that the trial court "consider" evidence of drug tests and screening result.  The test results do not dictate the court's decision. The trial court considered Wesley's attendance at substance abuse counseling and Alcoholic Anonymous sessions – together with the drug test results - in concluding that Wesley had rebutted the presumption against joint legal decision-making. 

In further support of its decision to affirm the decision of the trial court, the Court of Appeals noted that Wesley's parenting time is conditioned on her continued substance abuse classes and counseling, and that the parenting time is supervised until January 2016. And finally, the Court of Appeals noted that Hull retained final decision-making authority in the event of a disagreement.

2. Child Support. Hull argued that Wesley was capable of working full-time at minimum wage. The Court remanded the ruling for calculation of child support including health insurance and day-care costs.  

Court of Appeals on Legal Decision Making

It is difficult to imagine facts which are less helpful to Wesley, yet attendance at substance abuse counseling and Alcoholic Anonymous sessions seems to suffice to overcome the presumption against joint legal decision-making authority. Apparently, the Court of Appeals was satisfied with the protections resulting from Hull being awarded final decision-making authority in the event of a disagreement, and the requirement that Wesley continue to attend classes and counseling. Or perhaps the Court of Appeals recognized that there is little difference between sole legal decision-making and joint legal decision-making with final decision-making authority in the event of a disagreement between the parties. 


About the author: Mervyn Braude is a family law attorney at the Phoenix law firm of Jaburg Wilk P.C. He is a certified family law specialist by the State Bar of Arizona. Mervyn is a 2010 Southwest Super Lawyer


[1]  CA-CV 15-0640 FC, filed May 19, 2016

[2]  In accordance  with  the  recent  amendments  to  Supreme  Court  Rule  111, a memorandum decision  may  be  cited  for  persuasive value  if  (i)  the  decision  was issued  after  January  1,  2015; (ii) no opinion adequately addresses the issue before the court; and (3) the citation is  not to a depublished opinion or a depublished portion of an opinion.

[3] A.R.S. § 25-403.04(B)