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Finding The Right Divorce Attorney: How to Secure the Best Representation for Your Case
The decision to divorce is never an easy one and can be accompanied by much stress and emotional turmoil not to mention determining how to find the best divorce attorney for you.
Having a skilled and knowledgeable attorney by your side who understands the law, the divorce process, and you as an individual can provide peace of mind throughout the entire journey.
Here are some suggestions to help you in finding the best divorce attorney for your case.
Researching Potential Attorneys
The very first step in selecting a divorce attorney is doing your research. This includes seeking legal advice from family, friends, or co-workers who have been through a divorce process in the past.
Although their experience may not be completely similar to yours, they can still offer invaluable insight into the qualities of various attorneys they encountered.
When looking online, make sure to review each lawyer’s website thoroughly and read unbiased reviews on trusted sites like Google reviews. Also take note of any awards or recognition that attorneys have received which could speak volumes on their individual competence when it comes to handling matters of family law.
Interviewing Potential Attorneys
Before selecting an attorney it is essential that you meet with them face-to-face so that both parties can determine if they are suitable for each other professionally and personally.
During this time you should feel comfortable discussing openly your expectations for how the case should be handled as well as any questions or concerns you might have regarding proper legal counsel during such a difficult time in life.
Be sure to ask specific questions about areas of knowledge and experience related directly to matrimonial law such as alimony, child custody issues, division of marital assets and more so that you know exactly what that attorneys strategy will be based on your particular needs during this emotionally charged period of transition.
Compassionate Voice Is Key
In addition to being knowledgeable and experienced in family law, finding a divorce attorney with whom you can easily communicate with compassionately is extremely important when undergoing such a difficult process.
An experienced lawyer who has dealt with cases similar to yours before will understand firsthand how emotionally draining it can be; so having someone who is understanding yet professional enough to keep focused on getting desirable outcomes is beneficial for all involved when it comes to parties financial considerations like spousal support payments down to custody arrangements for children impacted by this situation too.
It’s also worth noting that having an advocate who empathizes with all aspects of this process will likely go beyond just representing you legally but also demonstrate genuine empathy towards you and your situation — something which many people find comforting when going through divorces especially if there are children involved too.
A compassionate voice during this trying time will undoubtedly make a world of difference in terms of navigating challenges associated with marital dissolutions while maintaining dignity and respect along the way too!
Steps To Take After Selecting An Attorney
After consulting potential attorneys and making an informed decision, there are some steps which should immediately follow.
First off, you need to go through the process of retaining that attorney to represent you which includes signing a written fee agreement and paying the initial retainer requested by the attorney.
It’s also important that both parties work together closely so that accurate information regarding assets owned jointly between spouses (or any separate property owned prior) are properly accounted for.
Once these formalities have been taken care of then comes the preparation stage where individuals must gather important documents related to their income, assets, debts, child custody matters, and alimony!
Once those important documents have been disclosed between the parties and their divorce attorneys, discussion can begin regarding reaching a settlement of the case or preparing the case for trial.
As you can see, choosing a divorce attorney who has a methodical and organized approach to gathering information and documents and a clear strategy to resolve your case likely mean you found the best divorce attorney for you and your case.
If you have questions about how to find the best divorce attorneys in Arizona, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona divorce and family law attorneys have over 100 years of combined experience successfully representing clients in divorce and family law cases.
Our family law firm has earned numerous awards such as US News and World Reports Best Arizona Family Law Firm, US News and World Report Best Divorce Attorneys, “Best of the Valley” by Arizona Foothills readers, and “Best Arizona Divorce Law Firms” by North Scottsdale Magazine.
Call us today at (480)305-8300 or reach out to us through our appointment scheduling form to schedule your personalized consultation and turn your child custody or family law case around today.
Significant Domestic Violence and Child Custody Matters in Arizona
Table of Contents
If you or your child have experienced significant domestic violence and are wondering how it will affect child custody in Arizona, you will need to know the laws concerning domestic violence and child custody in Arizona.
Fortunately, the Arizona Court of Appeals in the published decision of In Re Marriage of Morris & Mandel provided insight into determining how domestic violence affects child custody matters in Arizona.
Mother and Father had one minor child (“Child”) during their marriage. Child was born in Arizona in 2019. In June 2020 Mother filed for dissolution of marriage in Arizona while Mother, Father, and Child were still living in Arizona.
In lieu of the final divorce decree, Mother filed a motion with the Arizona Superior Court to obtain emergency temporary child custody orders. In the motion, Mother claimed Father had engaged in significant domestic violence against Mother.
Mother, a member of the United States military, sought permission to relocate to South Korea with Child for Mother’s military deployment.
Mother’s allegations of domestic violence were based, in part, on an incident in 2018 where Father had pled guilty to criminal charges. However, those criminal charges were later dismissed because Father attended a diversion program in exchange for dismissal of the charges.
In 2019 Father was jailed for committing domestic violence against Mother. Mother then obtained orders of protection against Father in 2019 and 2020.
Both orders of protection were affirmed after contested hearings. In anticipation of Child’s birth in 2019, Mother dismissed the 2019 order of protection to allow Father to be present during Child’s birth.
In July 2020 the Arizona Superior Court granted sole legal decision making to Mother in its temporary orders. The Arizona Superior Court declared Mother had “shown by a preponderance of the evidence that there had been a significant history of domestic violence.”
The Arizona Superior Court “concluded that ‘an award of joint legal decision-making [was] barred by A.R.S. § 25-403.03(A).’” The Arizona Superior Court also awarded Mother with primary parenting time and granted Father daily video calls and parenting time with Child in South Korea during Mother’s leave.
“Over the next two years, while the divorce was pending, Mother left the military, returned from South Korea and moved to Massachusetts.” Father moved to South Carolina. In May 2022 the Arizona Superior Court issued a final divorce decree. The Arizona Superior Court’s final decree awarded the parties with joint legal decision-making.
The Arizona Superior Court also entered a parenting plan designating Mother as the primary residential parent, with an increase in Father’s parenting time once Child began kindergarten.
Mother appealed, among other things, the legal decision-making and parenting time decisions of the court.
Legal Decision Making Standard of Review
On appeal, Mother argued that the Arizona Superior Court lacked the authority to grant Father joint legal decision making once it found Father had engaged in significant domestic violence.
The Arizona Court of Appeals reviews legal decision-making orders for an abuse of discretion. Engstrom v. McCarthy, 243 Ariz. 469, ¶ 4 (App. 2018). “An abuse of discretion occurs when the court commits an error of law in reaching a discretionary conclusion or when the record lacks competent evidence to support the decision.” Id.
Arizona Laws on Legal Decision Making When Domestic Violence Occurs
A.R.S. § 25-403.03 is the Arizona statute governing legal decision-making in situations where domestic violence has occurred. A.R.S. § 25-403.03(A) states: regardless of subsection (D) of this section, joint legal decision-making shall not be awarded if:
The court makes a finding of the existence of significant domestic violence pursuant to A.R.S. § 13-3601; or,
The court finds by a preponderance of the evidence that there has been a significant history of domestic violence.
“Preponderance of the evidence” means more likely than not. On a percentage scale, greater than 50%.
A.R.S. § 25-403.03(D) states: If the court determines that a parent who is seeking sole or joint legal decision-making has committed an act of domestic violence against the other parent, there is a rebuttable presumption that an award of sole or joint legal decision-making to the parent who committed the act of domestic violence is contrary to the child’s best interests.
This presumption, however, does not apply if both parents have committed an act of domestic violence. For the purposes of this subsection, a person commits an act of domestic violence if that person does any of the following:
Intentionally, knowingly, or recklessly causes or attempts to cause sexual assault or serious physical injury.
Places a person in reasonable apprehension of imminent serious physical injury to any person.
Engages in a pattern of behavior for which a court may issue an ex parte order to protect the other parent who is seeking child custody or to protect the child and the child’s sibling.
The term “rebuttable presumption” means a court is required to reach a specific factual or legal conclusion unless contradictory evidence can satisfactorily prove otherwise.
A.R.S. § 25-403.03(E) states: to determine if the parent has rebutted the presumption of § 25-403.03(D) the court shall consider all of the following:
Whether the parent has demonstrated that being awarded sole or joint legal decision-making or substantially equal parenting time is in the child’s best interests.
Whether the parent has successfully completed a batterer’s prevention program.
Whether the parent has successfully completed a program of alcohol or drug abuse counseling, if the court determines that counseling is appropriate.
Whether the parent has successfully completed a parenting class, if the court determines that a parenting class is appropriate.
If the parent is on probation, parole or community supervision, whether the parent is restrained by a protective order that was granted after a hearing.
Whether the parent has committed any further acts of domestic violence.
Legal Definition of “Significant” Domestic Violence in Arizona
Note that § 25-403.03(A) references § 13-3601 to express what constitutes domestic violence for purposes of subsection (A). The term “significant”, as used in that section, does not have a precise legal definition in Arizona. Upon passage of 25-403.03(A), the Arizona legislature failed to define the term “significant.” See A.R.S. § 25-401 (“Definitions”).
An Arizona court may decide that one act of domestic violence qualifies as “significant” domestic violence due to the magnitude of violence involved.
On the other hand, an Arizona court could also conclude that numerous less serious acts of domestic violence qualify as a “significant history” of domestic violence due to the sheer number of incidents. In sum, the “significance” of domestic violence is determined on a case-by-case basis.
However, in the published decision of Deluna v. Petitto, 247 Ariz. 420 (App. 2019) the Arizona Superior Court defined “significance” under § 25-403.03(A) as a product of three factors. DeLuna, 247 Ariz. at 424, ¶ 15 n.6 (App. 2019). The three factors used in Deluna are: (1) the seriousness of the particular incident(s) of domestic violence, (2) the frequency or pervasiveness of the domestic violence, and (3) the passage of time and its impact on the victim. Id.
In Deluna the Arizona Superior Court used the three-factor test to determine whether a father’s domestic violence was “significant” for purposes of § 25-403.03(A). Id.
On appeal, the Arizona Court of Appeals in Deluna stated in its footnotes that the Arizona Superior Court’s use of the three-factor test “seemed reasonable.” Id.
The Arizona Court of Appeals in Deluna concluded the Arizona Superior Court’s use of the three-factor test was not an abuse of discretion because the Arizona Superior Court had “discretion to weigh the evidence and determine the degree of the domestic violence’s ‘significance’ for the purpose of § 25-403.03(A).” Id.
Although the Arizona Court of Appeals in Deluna did not declare the three-factor test as the end-all-be-all test for “significance,” the Arizona Court of Appeals did not disavow use of the test.
Subsequent cases presented to the Arizona Court of Appeals involving issues of “significance” under § 25-403.03(A) have similarly followed suit. See, e.g., Lopez v. Scimone, 1 CA-CV 21-0220 FC, ¶ 9 (Ariz. App. May 31, 2022) (mem. decision) (concluding the Superior Court’s use of the three-factor test to determine “significance” was not an abuse of discretion simply because the test was not mandated by the legislature); Paredes-Gabriel v. Riva, 1 CA-CV 18-0328 FC, 2019 WL 1959588, at *4, ¶ 18 (Ariz. App. May 2, 2019) (mem. decision) (not expressly rejecting Superior Court’s use of the three-factor test to conclude father committed significant domestic violence but reversing that conclusion on other grounds); Ferrell v. Myers, 1 CA-CV 21-0500 FC, ¶ 11 (Ariz. App. May 12, 2022) (mem. decision) (concluding Superior Court’s use of the three-factor test to determine whether domestic violence was significant is not required but also not reversible error); Brumley v. Brumley, 1 CA-CV 17- 0498 FC, 2018 WL 2208037, at *3, ¶ 17 (Ariz. App. May 5, 2018) (mem. decision) (affirming Superior Court’s conclusion that father’s domestic violence was not significant based on the three-factor test); Rodriguez v. Reynolds, 1 CA-CV 21-0044 FC, ¶ 12 (Ariz. App. October 7, 2021) (mem. decision) (concluding Superior Court’s use of the three-factor test was appropriate in determining father’s domestic violence was significant).
Notice the cited cases following Deluna’s three-part test for determining “significance” are unpublished memorandum decisions.
In short, unpublished memorandum decisions have limited precedential value.
More simply, lawyers and non-lawyers alike should not support legal arguments using unpublished memorandum decisions unless expressly permitted by rule. See Ariz. R. Sup. Ct. 111(c).
In the rare instance where courts allow unpublished memorandum decisions to be presented, such decisions only hold persuasive value, meaning courts don’t have to abide by them.
Luckily Deluna itself is a published opinion, and one can observe the Arizona Court of Appeals has consistently refused to overturn decisions using the Deluna test, based solely on the use of the Deluna test.
Although the Arizona Court of Appeals has never directly adopted the Deluna test or required courts to use the Deluna test, the Deluna opinion nevertheless contains valuable insight.
At the very minimum, the Deluna test is helpful in defining what “significant” domestic violence is in Arizona and what a “significant history” of domestic violence is in Arizona.
Applying A.R.S. § 25-403.03(A) & (D)
“When the trial court finds a parent has committed an act of domestic violence against the other parent, subsection (D) creates ‘a rebuttable presumption that an award of sole or joint legal decision-making to the parent who committed the act of domestic violence is contrary to the child’s best interest.’” See § 25-403.03(D).
However, when an Arizona court finds “significant domestic violence” or a “significant history of domestic violence” joint legal decision-making cannot be awarded. See § 25-403.03(A).
On appeal, Father did not challenge the Arizona Superior Court’s finding that Father had engaged in a significant history of domestic violence. Given that finding, the Arizona Court of Appeals declared the Arizona Superior Court was precluded from awarding joint legal decision-making.
The Arizona Court of Appeals proclaimed the Arizona Superior Court incorrectly analyzed the legal decision-making matter, using the standard which applied when domestic violence was not “significant.”
That is, the Arizona Superior Court mistakenly used § 25-403.03(D) when it should have used § 25-403.03(A) to reach its conclusion on legal decision-making.
The starting point for analyzing legal decision-making where domestic violence has occurred is § 25-403.03(A).
The next logical step if, and only if, there is not significant domestic violence and no significant history of domestic violence is § 25-403.03(D).
Since the Arizona Superior Court disregarded § 25-403.03(A) after finding Father had a significant history of domestic violence, it was reversible error for the Arizona Superior Court to award joint legal decision-making based on the conclusion Father had rebutted the presumption “against an award of legal decision making.”
Father contends the conclusion of the Arizona Court of Appeals is unreasonable, relying on the Arizona Superior Court’s “extensive findings that [Father] had rebutted the presumption and that joint legal decision-making was in [Child’s] best interest.”
Father also claims the conclusion of the Arizona Court of Appeals is unfair as a matter of public policy.
Father reasons “it is unfair to preclude a parent who has committed significant domestic violence or has a significant history of domestic violence from exercising joint legal decision-making.”
However, “[t]hese arguments are foreclosed by the language of § 25-403.03(A).” “When the statute is clear and unambiguous, we must apply its terms without further analysis.” JH2K I LLC v. Ariz. Dep’t of Health Servs., 246 Ariz. 307, ¶ 9 (App. 2019).
The Arizona Court of Appeals proceeded to vacate the award of joint legal decision-making and remanded the issue back to the Arizona Superior Court with instructions to award Mother with sole legal decision-making.
Parenting Time Standard of Review
Mother argues the Arizona Superior Court “improperly increased [Father’s] parenting time once Child started kindergarten.” Parenting time orders in Arizona are reviewed under an abuse of discretion standard. Engstrom at 469, ¶ 4.
Arizona Parenting Time Laws When Domestic Violence Occurs
The Arizona statute governing parenting time in situations where domestic violence has occurred is A.R.S. § 25-403.03(F).
Under § 25-403.03(F), if an Arizona court finds a parent has committed an act of domestic violence, the offending parent has the burden of proving that “parenting time will not endanger the child or significantly impair the child’s emotional development.”
If the parent meets this burden to the court’s satisfaction, the court shall place conditions on parenting time that best protect the child and the other parent from further harm. Such conditions may include:
Requiring that an exchange of the child must occur in a protected setting as specified by the court.
Requiring that an agency specified by the court must supervise parenting time. If the court allows a family or household member to supervise parenting time, the court shall establish conditions that this person must follow during parenting time.
Requiring the parent who committed the act of domestic violence to attend and complete, to the court’s satisfaction, a program of intervention for perpetrators of domestic violence and any other counseling the court orders.
Requiring the parent who committed the act of domestic violence to abstain from possessing or consuming alcohol or controlled substances during parenting time and for twenty-four hours before parenting time.
Requiring the parent who committed the act of domestic violence to pay a fee for the costs of supervised parenting time.
Prohibit overnight parenting time.
Requiring a bond from the parent who committed the act of domestic violence for the child’s safe return.
Requiring that the address of the child and the other parent remain confidential.
Any other condition that the court determines is necessary to protect the child, the other parent and any other family or household member.
Under A.R.S. § 25-403(A) an Arizona court must determine parenting time “in accordance with the best interest of the child.” The court shall consider all factors that are relevant to the child’s physical and emotional well-being, including:
The past, present and potential future relationship between the parent and the child.
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.
The child’s adjustment to home, school and community.
If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time.
The mental and physical health of all individuals involved.
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.
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.
Whether there has been domestic violence or child abuse pursuant to § 25-403.03.
The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time.
Whether a parent has complied with chapter 3, article 5 of this title (A.R.S. §§ 25-351 to 25-355).
Whether either parent was convicted of an act of false reporting of child abuse or neglect under A.R.S. § 13-2907.02.
Under § 25-403.03(B) “[t]he court shall consider evidence of domestic violence as being contrary to the best interests of the child.”
“The court shall consider the safety and well-being of the child and of the victim of the act of domestic violence to be of primary importance.” “The court shall consider a perpetrator’s history of causing or threatening to cause physical harm to another person.”
Applying A.R.S. § 25-403.03 & § 25-403
Under the Arizona Superior Court’s order Father would “exercise parenting time for two continuous weeks at the end of each calendar quarter.” “Once kindergarten began, [Father’s] parenting time would increase to eight weeks in the summer, plus half of Christmas break and one week at spring break.” “In addition, the Arizona Superior Court allowed Father up to one week of parenting time per month in Mother’s state of residence.”
“[Mother’s] argument is premised in part on [Father’s] history of domestic violence.” “Unlike with legal decision-making, our statutory scheme does not prohibit parenting time for a parent who has engaged in ‘significant domestic violence’ or [who has] a ‘significant history of domestic violence.’” “Rather, parents who have committed domestic violence – ‘significant’ or otherwise – must ‘prove to the court’s satisfaction that parenting time will not endanger the child or significantly impair the child’s emotional development.’” See § 25-403.03(F). “If the parent does so … conditions [shall be placed] on parenting time that best protect the child and the other parent.” Id. “The statute does not specify the conditions, but it provides that the court ‘may’ issue certain orders, such as (1) requiring exchanges to occur in protected settings; (2) requiring the perpetrator to complete an intervention program; (3) prohibiting the perpetrator from consuming drugs or alcohol during parenting time; or (4) ‘imposing any other condition that the court determines is necessary to protect the child, the other parent and any other family or household member.’” Id.
“As with all parenting-time decisions, Arizona court‘s must also conduct a best-interest analysis under § 25-403.”
One factor to be considered in a best-interest analysis is domestic violence and child abuse. See § 25-403(A)(8). Arizona court‘s must consider domestic violence as contrary to a child’s best interest, and must consider the child and victim’s safety to be “of primary importance.” See A.R.S. 25-403.03(B).
Domestic violence is also relevant to other enumerated factors. See, e.g., § 25-403(A)(1) (“past, present and potential future relationship between the parent and child”), (A)(5) (“mental and physical health of all individuals involved”).
Arizona court’s must make specific findings on the record for every factor. Hart v. Hart, 220 Ariz. 183, ¶ 9 (App. 2009).
Here, the Arizona Superior Court mistakenly failed to engage in a best interest analysis concerning Father’s parenting time with Child.
However, the Arizona Court of Appeals noted the Arizona Superior Court implicitly addressed the requirements of § 25-403.03(F).
The Arizona Superior Court made findings regarding Father’s past domestic violence but found Child “had [a] good relationships with both parents.”
Additionally, Father had completed a batterer’s prevention course.
The Arizona Court of Appeals acknowledged these findings were supported by the record.
On the other hand, the Arizona Superior Court’s record reflects Mother had withheld parenting time from Father and had misled the Arizona Superior Court concerning the whereabouts of Child.
Based on the record, the Arizona Superior Court necessarily found that parenting time with Father would not endanger Child or significantly impair Child’s emotional development.
The Arizona Court of Appeals also gave weight to the fact “the parties had agreed Father could exercise unsupervised parenting time, the domestic violence had occurred years earlier, and Child was physically and mentally healthy.” “In addition, Mother proposed a parenting plan that allowed [Father] to exercise parenting time.”
The Arizona Superior Court “also addressed conditions that may be imposed under § 25-403.03(F).”
Father’s completion of the batterer’s prevention course satisfies a condition of § 25-403.03(F). Communications were also limited during exchanges. See § 25-403.03(F)(1), F(9). “Expressly citing A.R.S. § 25-403(F) in this analysis would have been a better practice.” “But because the court substantively addressed it, doing so implicitly was sufficient.”
“The [Arizona Superior] [C]ourt reasonably recognized that as children enter school, parenting-time arrangements must account for school schedules.” “The two-weeks-per-quarter arrangement for Child’s pre-kindergarten years would not work with most school calendars.” “As a result, the Arizona Superior Court crafted a schedule that would comply.” “[Mother] has also pointed to no authority that precludes a court from gradually increasing a parent’s parenting time.” “Rather, the increase comports with the public policy that absent evidence to the contrary, it is in a child’s best interests to have ‘substantial, frequent, meaningful, and continuing’ parenting time with both parents.” SeeA.R.S. § 25-103(B)(1).
Conclusion
Significant domestic violence or a significant history of domestic violence bars an offending parent from obtaining joint legal decision-making in Arizona. “Significance” may be determined using the Deluna test.
Where domestic violence by a parent is not significant, § 25-403.03(D) creates a rebuttable presumption against joint legal decision-making.
The presumption can be rebutted by showing joint legal decision-making is in the child’s best interest.
Regarding domestic violence and parenting time, it is in a child’s best interests to have “substantial, frequent, meaningful, and continuing” parenting time with both parents.
A parent who has committed domestic violence, significant or otherwise, can still exercise parenting time after showing the court that parenting time will not endanger the child or significantly impair the child’s emotional development. The offending parent must also show the court that parenting time is in the child’s best interest.
Arizona Child Custody Attorneys
If you have questions about child custody laws in Arizona, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona divorce and family law attorneys have over 100 years of combined experience successfully representing clients in divorce and family law cases.
Our family law firm has earned numerous awards such as US News and World Reports Best Arizona Family Law Firm, US News and World Report Best Divorce Attorneys, “Best of the Valley” by Arizona Foothills readers, and “Best Arizona Divorce Law Firms” by North Scottsdale Magazine.
Call us today at (480)305-8300 or reach out to us through our appointment scheduling form to schedule your personalized consultation and turn your child custody or family law case around today.
More Articles About Arizona Child Custody in Arizona
Rules for Indefinite or Lifetime Spousal Maintenance in Arizona
Table of Contents
If you are going through a divorce in Arizona you will need to know the laws concerning spousal maintenance in Arizona. Fortunately, the Arizona Court of Appeals in the published decision of Huey v. Huey provided insight into determining whether you or your spouse are entitled to an award of indefinite spousal maintenance.
In Arizona the terms “alimony” and “spousal maintenance” are interchangeable and both terms refer to the same legal principle. So, there is no need to fret over the distinction between the two. In this article however we will use the term “spousal maintenance.”
The Arizona Spousal Maintenance Statute
The relevant law concerning an award of spousal maintenance in Arizona is A.R.S. § 25-319. Part “(A)” of the statute provides instances where an award of spousal maintenance in Arizona is justified. Part “(B)” of the statute provides factors an Arizona court will consider when deciding both the amount and duration of spousal maintenance.
A.R.S. § 25-319(A) states that spousal maintenance shall be awarded when:
The receiving spouse lacks sufficient property, including property apportioned to the spouse, to provide for that spouse’s reasonable needs.
The receiving spouse lacks earning ability in the labor market that is adequate to be self-sufficient.
The receiving spouse is the parent of a child whose age or condition is such that the parent should not be required to seek employment outside the home.
The receiving spouse has made a significant financial or other contribution to the education, training, vocational skills, career or earning ability of the other spouse or has significantly reduced that spouse’s income or career opportunities for the benefit of the other spouse.
The receiving spouse had a marriage of long duration and is of an age that may preclude the possibility of gaining employment adequate to be self-sufficient.
A.R.S. § 25-319(B) states Arizona courts may award spousal maintenance for a period of time and in an amount necessary to enable the receiving spouse to become self-sufficient, unless the court finds the guidelines would be inappropriate or unjust. An Arizona court will then “consider together and weigh in conjunction” the following factors:
The standard of living established during the marriage.
The duration of the marriage.
The age, employment history, earning ability and physical and emotional condition of the spouse seeking maintenance.
The ability of the spouse from whom maintenance is sought to meet that spouse’s needs while meeting those of the spouse seeking maintenance.
The comparative financial resources of the spouses, including their comparative earning abilities in the labor market.
The contribution of the spouse seeking maintenance to the earning ability of the other spouse.
The extent to which the spouse seeking maintenance has reduced that spouse’s income or career opportunities for the benefit of the other spouse.
The ability of both parties after the dissolution to contribute to the future educational costs of their mutual children.
The financial resources of the party seeking maintenance, including marital property apportioned to that spouse, and that spouse’s ability to meet that spouse’s own needs independently.
The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment and whether such education and training is readily available.
Excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common.
The cost for the spouse who is seeking maintenance to obtain health insurance and the reduction in the cost of health insurance for the spouse from whom maintenance is sought if the spouse from whom maintenance is sought is able to convert family health insurance to employee health insurance after the marriage is dissolved.
All actual damages and judgments from conduct that resulted in criminal conviction of either spouse in which the other spouse or a child was the victim.
Huey v. Huey: Background Facts
Wife and Husband married in 2006. In March 2018 Wife filed for legal separation, which Wife later converted to a divorce. During the pendency of the divorce the Arizona Superior Court entered temporary orders requiring Husband to pay Wife temporary spousal maintenance. The temporary orders also required Husband to pay community expenses on the marital home, pay the costs of the parties’ insurance, and pay the parties’ 2018 quarterly tax payments.
In 2015, before the parties’ divorce, Wife worked in a managerial position earning $90,000 per year. Since that time Wife has been unemployed due to “major depression and an anxiety disorder caused by Husband’s ‘repetitive and severe constant demeaning of her over the course of the marriage.’”
The Arizona Superior Court ultimately determined that Wife was unable to become self-sufficient through appropriate employment, resulting in an award of spousal maintenance to Wife of $2,500 per month for an indefinite duration. The Arizona Superior Court determined that an indefinite award of spousal maintenance was justified because “it was ‘unable to find that Wife has or will have the ability to achieve financial independence.’”
Husband appealed the spousal maintenance award to the Arizona Court of Appeals.
Standard of Review for Arizona Spousal Maintenance Awards
Appeals of spousal maintenance awards in Arizona are reviewed under an “abuse of discretion” standard of review. Helland v. Helland. Historically, an abuse of discretion standard of review is deferential to trial courts, “who had a more immediate grasp of all the facts of the case, an opportunity to see the parties, lawyers and witnesses, and who was in a better position to assess the impact of what occurred before it.” City of Phoenix v. Geyler citing State v. Chapple.
Under an abuse of discretion standard of review trial courts “in exercising their discretion, are not authorized to act arbitrarily or inequitably nor to make decisions unsupported by facts or sound legal policy.” Bowman v. Hall. “Neither does discretion leave a court free to misapply law or legal principles.” Johnson v. Howard. “Something is discretionary because it is based on an assessment of conflicting procedural, factual or equitable considerations.” “Where, however, the facts or inferences from them are not in dispute and where there are few or no conflicting considerations, the resolution of the question is one of law or logic.” “A discretionary act which reaches an end or purpose not justified by, and clearly against, reason and evidence ‘is an abuse.’” An abuse of discretion can also “result from an error of law in the process of exercising discretion.” Fuentes v. Fuentes.
In sum, if the discretion exercised by the trial court is not reasonably justified by evidence or law, then the trial court has abused its discretion.
Non-Permanent Disabilities And Indefinite Spousal Maintenance
The Arizona Court of Appeals commenced their review of the case by evaluating historical Arizona case law on spousal maintenance.
The Arizona Court of Appeals began with the foundational case of Schroeder v. Schroeder, where the Arizona Supreme Court pronounced the goal of spousal maintenance “is to achieve independence for both parties and to require an effort towards independence by the party requesting maintenance.”
The Arizona Court of Appeals noted that Arizona courts have previously awarded spousal maintenance of indefinite duration, but such awards “appear to be less common, and have been closely scrutinized in appellate opinions.”
However, the Arizona Court of Appeals recognized that although Schroeder contained the guiding principle of spousal maintenance awards in Arizona, Schroeder did not specifically address the question at hand in the current case.
The issue of first impression presented in the immediate case is whether an Arizona Court can award indefinite spousal maintenance when the receiving spouse’s inability to be self-sufficient is based solely on a non-permanent mental health condition.
The Arizona Court of Appeals accepted the Arizona Superior Court’s finding that Wife was unable to currently achieve self-sufficiency.
At the trial held by the Arizona Superior Court, Wife presented expert testimony regarding her depression and anxiety disorders. “But, the expert testimony on which the Arizona Superior Court relied in imposing an indefinite award did not establish that Wife’s disabling condition would permanently prevent her from meeting her own needs.” “To the contrary, when the Arizona Superior Court asked whether the expert ‘considered Wife’s condition to be a permanent disability,’ the expert responded, ‘no.’” Wife’s expert stated that the duration of Wife’s disability remained uncertain and the permanency of Wife’s disability was uncertain.
The Arizona Court of Appeals held, based on the evidence provided (Wife’s prior earnings, Wife’s earning capacity, the financial disparity between the spouses, and Wife’s mental health diagnosis), the record did not support an indefinite award of spousal maintenance to Wife.
In sum, Wife failed to prove self-sufficiency could not be achieved such that Wife’s reasonable needs could be met.
Burden of Proof When Modifying Spousal Maintenance in Arizona
The Arizona Court of Appeals declared spousal maintenance awards “are presumptively modifiable, and that if the indefinite spousal maintenance award were affirmed, Husband could seek a modification if Wife’s condition improved.” “But an indefinite spousal maintenance award places the burden on the paying spouse to show a change in circumstances sufficient to warrant ending or modifying the award.”
The Arizona Court of Appeals noted, under these circumstances, if Wife were awarded spousal maintenance indefinitely then Husband would be put in an “untenable position.”
Husband would have to decide to challenge Wife’s mental health condition without having immediate access to Wife’s mental health records and “with a relatively limited basis from which to assess a change in circumstances.”
By placing the burden of proof on Husband, Husband would be put in a position where Husband would have to challenge Wife’s condition, possibly multiple times, based only on Husband’s limited perceived changes in Wife’s condition.
By awarding Wife spousal maintenance for a fixed-term, the burden of proof is placed on Wife to show that circumstances warrant an extension of spousal maintenance when the fixed-term expires.
Additionally, “if Wife’s mental health condition does not improve – even after being removed from the situation that arguably caused the condition – Wife will be much better situated to offer evidence (or to decide in the first instance whether to proffer updated mental health evidence) to establish a basis for extending a fixed-term award.”
The Arizona Court of Appeals proceeded to remand the Arizona Superior Court’s indefinite spousal maintenance award to Wife.
The Arizona Court of Appeals stated that the Arizona Superior Court should award Wife spousal maintenance over a fixed-term and that after the award, the burden of proof will properly fall on Wife for future extensions or modifications of spousal maintenance.
The burden of proof will fall on Wife “to demonstrate circumstances showing why a transition toward financial independence should be further delayed.”
Perpetual Inability to Meet Reasonable Needs
The Arizona Court of Appeals then went on to discuss the dissenting opinion of one of its own, Judge Furuya. Judge Furuya agreed with the “framework” of Schroeder but reached a different conclusion to the case at hand based on the holding in Rainwater.
In Rainwater the receiving spouse was a 41-year-old secretary who was working towards a college degree.
Evidence provided in Rainwater showed that the receiving spouse was only capable of earning $20,000 per year, “which was insufficient to sustain her in the standard of living the couple had enjoyed during the marriage.”
Even if the receiving spouse in Rainwater obtained a college degree, “her earning potential would only increase to approximately $27,000 – still far short of meeting her reasonable needs” which were calculated to be $41,000 per year.
In Rainwater the court rejected the argument of a paying spouse “that indefinite spousal maintenance could only be awarded ‘to a spouse who is permanently unable to be self-sustaining.’”
However, the majority opinion of Arizona Court of Appeals stated, “the decision to affirm an indefinite award in Rainwater turned not on the permanence of a particular condition, but instead on the receiving spouse’s ultimate earning potential in relation to the standard of living established during the marriage.”
“Rainwater in fact confirmed that ‘the transition toward independence is a principal objective of maintenance under A.R.S. § 25-319(B),’ and that ‘maintenance orders, whenever possible, should promote a transition toward financial independence.’”
The majority of the Arizona Court of Appeals also noted the spousal maintenance award in Rainwater “was to be reduced from $22,800 to $14,400 per year after no more than three years or when the receiving spouse received her B.A. degree, whichever came first.”
Most importantly, the receiving spouse in Rainwater had no indications independence could realistically be achieved, even if the receiving spouse became employed.
The majority of the Arizona Court of Appeals stated, in contrast to the case at hand, the evidence presented by Wife does not support a finding that Wife’s condition will forever prevent Wife’s financial independency and self-sufficiency.
Furthermore, Wife had previously earned $90,000 a year before the onset of Wife’s mental condition, which is more than sufficient to cover Wife’s reasonable needs, which were calculated by the Arizona Superior Court to be $60,000 per year. “Thus, unlike the spouse receiving maintenance in Rainwater, Wife can potentially earn a significant income (if her mental health improves).”
The Arizona Court of Appeals Did Not Infringe Upon the Superior Court’s Discretion
Judge Furuya also found influential the standard of review to be applied in the immediate case between Husband and Wife, stating the Arizona Superior Court “retains significant discretion in determining the parameters of a spousal maintenance award.”
Judge Furuya went on to state the majority of the Arizona Court of Appeals was infringing upon the Arizona Superior Court’s discretion by substituting its “judgment for the Arizona Superior Court.”
In the immediate case the Arizona Superior Court lacked the authority to award indefinite spousal maintenance under the facts presented to it. Wife never proved the permanence of her condition.
Without proving the permanence of Wife’s condition, it cannot be said that Wife’s condition will forever prevent Wife from becoming self-sustaining such that Wife can never meet her reasonable needs independently.
Therefore, the Arizona Court of Appeals was not infringing upon the discretion granted to the Arizona Superior Court because under the facts presented the Arizona Superior Court never retained any discretion to award indefinite spousal maintenance in the first place.
Lastly, Judge Furuya proclaimed that “no case law or statute requires the conclusion the majority reached here.” But, the majority disagreed stating “our decision is consistent with the guiding principles announced in Schroeder, which is the relevant controlling authority from the Arizona Supreme Court, and nothing precludes us, as a matter of first impression, from clarifying that an indefinite spousal maintenance award cannot be based on a non-permanent mental health condition.”
Conclusion
The principal purpose of spousal maintenance in Arizona is to achieve independence for both parties and to require an effort towards independence by the party requesting maintenance.
To receive spousal maintenance in Arizona, a spouse must fit into at least one of the five classes listed in A.R.S. § 25-319(A).
The amount and duration of an Arizona spousal maintenance award will be unique to each individual case but can be somewhat envisioned using the factors listed in A.R.S. § 25-319(B).
An award of indefinite spousal maintenance in Arizona cannot be predicated solely on a non-permanent disability. Instead, a receiving spouse must show that they cannot meet their reasonable needs independently.
Post-petition payment of community expenses with separate property funds are entitled to reimbursement in Arizona, which can be reallocated when appropriate.
Reallocation can be achieved in numerous ways, such as applying the funds retroactively to spousal maintenance, or through a more equitable division of property.
Arizona Divorce Attorneys
If you have questions about spousal maintenance laws in Arizona, you should seriously consider contacting the attorneys ate Hildebrand Law, PC. Our Arizona divorce and family law attorneys have over 100 years of combined experience successfully representing clients in divorce and family law cases.
Our family law firm has earned numerous awards such as US News and World Report Best Arizona Family Law Firm, US News and World Report Best Divorce Attorneys, “Best of the Valley” by Arizona Foothills readers, and “Best Arizona Divorce Law Firms” by North Scottsdale Magazine.
Call us today at (480) 305-8300 or reach out to use through our appointment scheduling form to schedule your personalized consultation and turn your child custody or family law case around today.
More Articles About Spousal Maintenance in Arizona
Phantom Income in a Divorce in Arizona: Understanding the Concept
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Divorce is a complex and emotional process that requires individuals to deal with various financial and legal issues, including property division, spousal support, and child custody.
One of the most challenging aspects of divorce is determining the income of each spouse, which can significantly impact the final settlement amount.
However, in some cases, divorcing couples may face a confusing and often overlooked concept known as phantom income.
In this article, we will explore what phantom income is, how it can impact a divorce settlement in Arizona, and what steps you can take to protect yourself.
Understanding Phantom Income in an Arizona Divorce
Phantom income is a term used to describe income that is not actually received in cash or physical assets but is still subject to taxation.
Phantom income is income that is taxable but not yet received by the person being attributed the phantom income.
For example, let’s say a spouse owns a pass though income business, like a subchapter S corporation. Let’s also assume the spouse receives a salary of $100,000.00 from the business as a salary and that the revenue of the company was $150,000.00 more than the company’s expenses resulting in net profit of $150,000.00.
Let’s also assume the spouse who owns that company leaves that net profit in the business such that he never personally received that $150,000.00 because, for example, that additional income is needed by the business to purchase capital assets set as new equipment, vehicles, computers and the like, or is needed as working capital, or is needed by the company to pay for future growth of the company.
How Phantom Income Can Affect a Divorce in Arizona
As you can see, the concept of phantom income in an Arizona divorce can pose some serious problems in the above example because the business owning spouse will only want his $100,000.00 salary to be considered for issues such as spousal maintenance and child support while the other spouse will want to include the additional phantom income and argue the other spouse earns $250,000.00 a year for purposes of spousal maintenance and child support.
As another example, the net income of the business may be decreased by expenses that were not incurred in the year in which the expense is reported, such as depreciation expense, which arguably artificially decreases the net income being that a spouse receives from his or her business.
Phantom income, therefore, can have a significant impact on a divorce settlement, primarily when dealing with assets such as businesses, investment properties, and stocks.
As you can see, the concept of phantom income can have a significant impact on a spouse’s ability to pay spousal support or child support, which can have lasting effects on the financial stability of that spouse for years.
Dividing Phantom Income as Community Property
In Arizona, property division follows the principle of community property laws, which states that all assets acquired during the marriage are marital property and subject to equal distribution. As such, any phantom income generated by marital assets may also be subject to division.
However, the calculation of phantom income can be complex.
How to Protect Yourself from Phantom Income in a Divorce
If you are going through a divorce in Arizona and are concerned about phantom income, there are steps you can take to protect yourself.
First and foremost, it is essential to work with an experienced divorce attorney who understands the concept of phantom income, who can identify it, and who can help you navigate the complexities of property division, spousal support, and child support.
It is also crucial to have a clear understanding of the assets involved in the divorce and any potential phantom income associated with those assets. This may require the assistance of a financial expert, such as a forensic accountant or a business valuation expert, who can help identify any hidden sources of income or explain why the phantom income should not or cannot be paid to the business owning spouse.
Finally, it may be necessary to negotiate a settlement agreement that accounts for phantom income and its potential impact on the divorce settlement. This may involve negotiating spousal support payments, property division, or other financial arrangements that adequately address the phantom income issue.
Conclusion
Divorce is a challenging process that requires individuals to deal with a wide range of financial and legal issues.
Phantom income is a concept that is often overlooked but can have a significant impact on a divorce settlement in Arizona.
Understanding what phantom income is and, more importantly, having a divorce attorney who knows what phantom income is and how to properly address it, can have a huge impact on the outcome of your divorce.
If you are facing a divorce and need assistance navigating the complexities of property division and spousal support, contact a qualified divorce attorney today. With the right legal guidance, you can ensure that your rights are protected and that you receive a fair settlement that properly addresses the issue of phantom income.
If you need information about Arizona alimony and spousal maintenance laws, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona alimony and spousal maintenance attorneys have over 100 years of combined experience successfully representing clients in divorce cases in Arizona.
Our family law firm has earned numerous awards such as US News and World Reports Best Arizona Family Law Firm, US News and World Report Best Divorce Attorneys, “Best of the Valley” by Arizona Foothills readers, and “Best Arizona Divorce Law Firms” by North Scottsdale Magazine.
Call us today at (480)305-8300 or reach out to us through our appointment scheduling form to schedule your personalized consultation and turn your Arizona alimony or spousal maintenance case around.
Arizona Child Custody Jurisdiction: A Child’s Temporary Versus Permanent Relocation to Arizona
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If you are considering obtaining an Arizona child custody order, and either you or your spouse has moved to Arizona from a different state or country, you will need to know the laws concerning Arizona child custody jurisdiction.
Fortunately, the Arizona Court of Appeals in the published decision in Antonetti vs. Westerhausen provided insight into determining if Arizona has jurisdiction to decide a child custody matter.
Father, an Italian citizen, moved to Tunisia in 2007. Mother, an American citizen, moved to Tunisia in 2013. Father and Mother began a relationship in Tunisia in 2013. In March 2018, Father and Mother had a child. The child, having been born to an Italian and American citizen, was granted dual citizenship as an Italian and American citizen.
In February 2020 Father, Mother, and Child flew to Italy for a vacation. During their vacation the Coronavirus pandemic began, and the Italian government responded by implementing travel restrictions. Soon after, Tunisia implemented international travel restrictions and closed its borders to international travel.
In April 2020 Mother and Child were given the opportunity to travel to the United States on a repatriation flight reserved for United States citizens only. Father, who was not an American Citizen, could not travel on the repatriation flight with Mother and Child to America. Regardless, Mother and Child traveled to the United States without Father.
Upon entering the United States, Mother began residing in Arizona. Father returned to Tunisia on June 27, 2020 while Mother continued living in Arizona. Mother continued to live in Arizona since April 13, 2020.
On November 3, 2020, Mother petitioned the Arizona Superior Court to establish paternity, legal decision-making, parenting time, and child support. Neither party contested paternity of Child.
Mother requested sole legal decision-making for Child and sole physical custody of Child, granting Father supervised parenting time. Mother alleges that she relocated to Arizona with Child, so they could escape domestic violence perpetrated by Father.
Father was served with Mother’s petition on January 12, 2021. Father responded by moving to dismiss Mother’s petition for lack of subject matter jurisdiction.
Subject Matter Jurisdiction Is Required for a Court to Determine Child Custody
Subject matter jurisdiction refers to the ability of a court to hear a specific type of action. Unless a court has subject matter jurisdiction over the issue being presented to it, the court has no legal authority to decide the issue.
In a nutshell, the UCCJEA was created to prevent conflicting child custody orders from being issued by courts in different states and countries. Arizona has codified provisions of the UCCJEA, including its jurisdictional requirements, into statutes.
Arizona Child Custody Jurisdiction Laws
In Arizona, the relevant statute for establishing subject matter jurisdiction over child custody matters is A.R.S. § 25-1031. The statute states, unless an emergency enumerated in A.R.S. § 25-1034 exists, Arizona courts have subject matter jurisdiction over an initial child custody determination only if either of the following two requirements are met:
Arizona is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state; or,
A court of another state does not have jurisdiction under (1) or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under section 25-1037 (inconvenient forum) or 25-1038 (misconduct) and both of the following are true:
The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have significant connection with this state other than mere physical presence.
Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships.
An initial child custody determination is “the first child custody determination concerning a particular child.” SeeA.R.S. § 25-1002(8). “The ‘home state’ … is the state in which a child has lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding, including any period during which that person is temporarily absent from that state.” See A.R.S. § 25-1002(7)(a).
But, “If a child is less than six months of age, the [home state is the] state in which the child lived from birth with a parent or person acting as a parent, including any period during which that person is temporarily absent from that state.” SeeA.R.S. § 25-1002(7)(b).
Likewise, Arizona courts “shall treat a foreign country as if it were a state of the United States … for purposes of applying the UCCJEA.” SeeA.R.S. § 25-1005(A).
Arizona Is the Home State for Relocations Lasting More than Six Consecutive Months with No Intention to Return
Father argues that Tunisia is Child’s home state for jurisdictional purposes and that Child was only temporarily absent from Tunisia.
Mother responded, stating that before moving to Arizona Child had not lived anywhere consecutively for more than 3 months.
Mother argues that Arizona is Child’s home state because Child “lived with her in Arizona for more than six consecutive months immediately prior to the commencement of the instant child custody proceeding.”
The Arizona Superior Court agreed with Mother, denying Father’s motion to dismiss. In the opinion of the Arizona Superior Court, Child’s home state before moving to Arizona was Tunisia, but Arizona became Child’s home state when Child and Mother resided in Arizona for over six months with no intention to return to Tunisia.
The Arizona Superior Court emphasized Mother’s and Child’s time away from Tunisia was not a temporary absence because Mother and Child never intended to return to Tunisia.
The Arizona Superior Court proclaimed that any claim of a temporary absence was repudiated by Mother’s decision to travel to the United States on a repatriation flight, Mother’s failure to return to Tunisia after Tunisia reopened its borders, and Mother’s communications with Father that Mother was “deeply unhappy” with the relationship and had an “obvious reluctance” to return to Tunisia.
Father argued that Arizona cannot be Child’s home state because six months had not passed between Mother’s communication with Father that Mother intended to permanently stay in Arizona, and the filing of Mother’s petition.
The Arizona Superior Court disagreed. Father then appealed to the Arizona Court of Appeals for special action relief.
Special Action Relief to Define a Temporary Absence
“Special action jurisdiction is discretionary, but appropriate when no ‘equally plain, speedy, and adequate remedy by appeal’ exists.” The Arizona Court of Appeals can also exercise special action jurisdiction when “statutes or procedural rules require immediate interpretation, and a petition presents a purely legal issue of first impression that is of statewide importance.” See Gutierrez v. Fox.
The Arizona Court of Appeals in this case exercised special action jurisdiction to determine the appropriate legal standard for determining whether an absence is a temporary absence for home state jurisdictional purposes.
The Arizona Court of Appeals will “review issues of law, including statutory interpretation and a court’s jurisdictional authority, de novo.” “To the extent a court’s jurisdictional determination rests on disputed facts, however, the Arizona Court of Appeals will accept [the] findings [of the Arizona Superior Court] if reasonable evidence and inferences support them.” See Holly C. v. Tohono O’odham Nation.
A Temporary Absence Is Determined by the Totality of the Circumstances
The Arizona Court of Appeals began their examination of the case by acknowledging Mother lived with Child in Arizona for slightly longer than six months because Mother moved to Arizona on April 13, 2020 and Mother filed her petition on November 3, 2020.
However, Father argues that Child was only temporarily absent from Tunisia during that time. Therefore, Father argues, Arizona lacks jurisdiction to make an initial determination of custody regarding Child.
The Arizona Court of Appeals referenced Bata v. Konan in declaring “jurisdiction cannot be established in a state where the time spent in that state is found to be a period of temporary absence from another state.”
However, the Arizona Court of Appeals recognized that the UCCJEA does not specifically define the term “temporary absence.”
The Arizona Court of Appeals also stated that Arizona courts have not officially adopted a standard for assessing if an absence qualifies as a temporary absence for purposes of determining home state jurisdiction.
The Arizona Court of Appeals stated that without any controlling authority on the matter, the Arizona Court of Appeals would look to legal standards applied by other jurisdictions interpreting the term “temporary absence.”
The Arizona Court of Appeals acknowledged that “although the UCCJEA ‘was meant to be interpreted uniformly across jurisdictions,’ states have adopted three different tests to evaluate whether an absence is temporary for purposes of determining a child’s home state.”
The first test examined was the duration test. Under the duration test, the focus is “strictly on the length of the child’s absence.” “Short absences are treated as temporary, and longer ones are not.” See Matter of Marriage of Schwartz & Battini.
The Arizona Court of Appeals declined to adopt this test because, although it was straight forward and easy to apply, “it fails to recognize that some short absences ‘may simply be the start of a permanent relocation.’”
The second test considered by the Arizona Court of Appeals was the intent test. The intent test “requires courts to consider the parents’ purpose for an absence to determine whether it should be deemed temporary.”
The Arizona Court of Appeals stated that this test was difficult to apply because determining a party’s true intent can sometimes be “problematic” and a parent’s intent “may have differed from the outset or changed over time.”
The third test, which the Arizona Court of Appeals ultimately adopted, is the totality of the circumstances test. The totality of the circumstances approach “is the standard ‘most commonly used by other UCCJEA states.” “Under the totality of the circumstances test, [Arizona Court’s must] consider ‘all the surrounding circumstances of a purported temporary absence, including the intent of the parties and the duration of the absence, to assess whether the absence should be treated as a temporary departure from a putative home state.”
The Arizona Court of Appeals stated that the totality of the circumstances test “provides ‘greater flexibility’ for a court to examine all the relevant facts, including how, when, and why ‘the child came to and remained in the state.’”
Having adopted the totality of the circumstances approach, the Arizona Court of Appeals was now properly equipped to deal with the case between Mother and Father.
Child’s Absence Was Not a Temporary Absence
The Arizona Court of Appeals then examined four pieces of testimony Father had made at the evidentiary hearing held by the Arizona Superior Court.
First, Father testified that he did not approve of Mother leaving Italy with Child on a repatriation flight.
Second, Father testified that he and Mother agreed that Mother and Child would return to Tunisia as soon as international travel was reestablished.
Third, Father testified that Mother’s communications with him after arriving in Arizona “were consistent with her returning to Tunisia.”
Lastly, Father testified that he did not realize Mother intended to permanently stay in Arizona with Child until he was served with a copy of Mother’s petition.
Father cites three communications with Mother in support of his contention that the parties’ intended Child’s presence in Arizona to be temporary.
In the first communication from Mother to Father regarding Mother’s return to Tunisia, Mother stated, “if and when they … lift the restrictions about quarantine in Tunisia, we’ll gladly come back and hopefully in the meantime we can find some way to communicate about our relationship and try to repair [it].”
In the second communication Mother emailed Father about a banking matter. Mother stated, “it’s pointless for me to make the transfer to my personal account if I can’t wire it to my account in America so I’ll just wait until I get back to Tunisia.”
In the third communication Mother stated to Father she had sustained an injury and was unable to travel. Mother stated, “I know you’re in a hurry for us to return but I can barely walk.”
However, “[i]n response to questioning, Father admitted that Mother had ‘expressed a desire to stay in Arizona’ and conveyed considerable reluctance about returning to Tunisia.”
Father was also copied on a letter Mother had emailed to her Arizona therapist on August 5, 2020. Mother’s letter to her therapist stated, in part:
“The child and I did leave Italy for Phoenix on April 13[, 2020] however both Father and I were agreed and understood that we would be in America until the Coronavirus pandemic passed and it became safe and possible to travel again.” “Father expressed sadness at our departure but agreed and understood that we needed to return to the US to have some distance from him due to the abuse the child and I were suffering within our relationship.” “During our time in Phoenix, I have requested repeatedly that Father work constructively with me to attempt to repair our relationship or determine a go-forward plan. I have proposed various living situations, asked him to discuss my fears and issues related to our relationship and the poor living conditions in Tunisia. He has refused each time.” “Despite the four months of separation between us, I remain afraid of returning to Tunisia and Father’s home. I have a duty to protect the child from the certain consequences we will suffer at Father’s hand for protecting the child and myself.”
Father admitted reading the letter, but Father believed Mother could “still come back.”
Mother on the other hand testified she told Father in March 2020, while still in Italy, that she could not continue the relationship.
Mother also testified she told Father again that she would not continue their relationship before getting on her flight to America in April 2020. Mother explained that because she was afraid of Father, she did not explicitly tell Father that she was ending their relationship with no plan to return, instead telling Father that their relationship was unhealthy and was harming Child.
Mother further testified she repeatedly told Father after arriving in Arizona, “she would not ‘consider’ returning to Tunisia unless [Father] made behavioral changes and could assure both her and the child’s safety.”
Mother denied accusations she mislead Father or hid her intent to stay in Arizona with Child from Father, but acknowledged she would frequently “placate” Father to avoid confrontation.
Personal Knowledge That a Relocation Was Intended to Be Permanent Is Not Necessary in Arizona
Father argued “the six-month period for determining a child’s ‘home state’ does not begin to run until the parent in the original state ‘had reason to recognize the permanency of the out-of-state absence.’”
Father claims he “had no reason to believe to believe Child’s absence from Tunisia was permanent until he was served with Mother’s petition.” “Father argues the six-month period did not begin to run until January 2021, two months after Mother commenced [the child] custody proceeding.” Father cites Cook v. Arimitsu in support of his argument.
The Arizona Court of Appeals in rejecting Father’s argument stated that Father’s “contention is belied by Father’s (1) admission that after arriving in the State Mother ‘expressed a desire’ to remain in Arizona and conveyed considerable reluctance when pressed about returning to Tunisia, and (2) [Father’s] emails imploring Mother to return to Tunisia, promising no ‘reproach awaited’ her.”
The Arizona Court of Appeals stated, “in determining whether an absence is a ‘temporary absence,’ we do not believe the significance of intent can or should be restricted to the intent existing at the time of leaving.” See In Re Marriage of Pereault.
“If it were so restricted, then an absence that began with the intent to return would remain a ‘temporary absence’ even long after a decision had been reached for the child to permanently relocate.”
The Arizona Court of Appeals stated, “although Father argues ‘an expression of desire to remain in Arizona is very different from a declaration of intent to remain in Arizona,’ Mother testified, unequivocally that she told Father, both before leaving Italy and after arriving in Arizona, that she believed it was unsafe for her and the child to return to Tunisia.”
Father’s argument asserts the six-month period for home state jurisdiction should not begin until he realized he could not persuade Mother to return to Tunisia “and abandoned hope of reconciliation and reunification.”
The Arizona Court of Appeals stated that is not the legal standard pronounced by Cook, the case cited by Father. “Rather, the question [under Cook] is when Father had reason to recognize the child’s relocation was permanent, not when he resigned himself to that reality.”
In other words, the Arizona Court of Appeals said Father misunderstands the legal principles laid out in Cook.
Furthermore, the beginning of the six-month period for home state jurisdiction does not rest on Father’s knowledge of the permanency of Child’s move to Arizona with Mother.
The Arizona court of Appeals stated the Arizona Superior Court was “in the best position to determine the credibility of witnesses, resolve conflicts in evidence, and weigh the evidence accordingly.”
The Arizona Court of Appeals determined the Arizona Superior Court did not err in its conclusion that “Father had reason to believe Mother was permanently relocating to Arizona with [Child] when they left Italy.”
The Arizona Court of Appeals stated under the totality of the circumstances, “reasonable evidence supports the [Arizona Superior Court’s] finding that [Child’s] absence from Tunisia was not temporary for purposes of the UCCJEA.” The Arizona Court of Appeals stated, “given the length of [Child’s] continuous presence in [Arizona] before Mother filed her petition, the [Arizona Superior Court] properly found that Arizona is [Child’s] home state for purposes of subject matter jurisdiction under the UCCJEA.”
Conclusion
A court must have subject matter jurisdiction to exercise legal authority over a given issue.
For an Arizona court to make a child custody determination, Arizona must generally be the home state of the child. But, there are exceptions to the general rule.
The home state of a child is the state in which a child has lived with a parent for at least six consecutive months, including any period during which that person is temporarily absent from that state.
The totality of the circumstances determines whether an absence is a temporary absence. The totality of the circumstances test requires courts to consider all the surrounding circumstances of a purported temporary absence, including the intent of the parties and the duration of the absence.
Arizona Divorce Attorneys
If you have questions about child custody laws in Arizona, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona divorce and family law attorneys have over 100 years of combined experience successfully representing clients in divorce and family law cases.
Our family law firm has earned numerous awards such as US News and World Reports Best Arizona Family Law Firm, US News and World Report Best Divorce Attorneys, “Best of the Valley” by Arizona Foothills readers, and “Best Arizona Divorce Law Firms” by North Scottsdale Magazine.
Call us today at (480)305-8300 or reach out to us through our appointment scheduling form to schedule your personalized consultation and turn your child custody or family law case around today.
