Change in Circumstances to Modify Child Custody
A parent must establish a change in circumstances to modify child custody in Arizona. In Thomas Pridgeon v. Supreme Court, the Arizona Court of Appeals delivered an opinion on the subject of whether the court can consider events prior to the original order when a petition to modify child custody alleges a change in circumstances subsequent to the order. The court also ruled on what standard should be applied by the court in determining whether adequate cause has been established by a petition for modification so as to require a hearing be held.
Thomas Pridgeon and Renee LaMarca’s marriage was dissolved in December 1978 by a decree that awarded custody to LaMarca with reasonable visitation rights to Pridgeon. In August 1979, the parties sought to modify the custody arrangement by stipulation to give Pridgeon custody for one year, so that LaMarca could attend college full time and retain her current employment. The stipulation to modify the decree was approved by the superior court. The court also approved a second stipulation to renew and extend the change of custody for a second year.
LaMarca had regular visitation with the child during these two years. In 1981, Pridgeon filed a petition to modify child custody, alleging that having custody of his son for two years constituted a substantial and continuing change in circumstances justifying a modification. He asked to be given full custody of the child in the petition.
LaMarca filed an opposing petition arguing that Pridgeon failed to meet the adequate cause standard or allege a requisite change of circumstances. She attached an affidavit claiming that she had remarried and could provide her child with a good home. Pridgeon replied, stating that he too had remarried and alleged that the child desired to remain with him and his new wife. The reply also alleged that LaMarca had threatened physical violence against the child and mentally pressured him.
Affidavits of Pridgeon, his wife, and the child to the same effect were attached. The mother moved to strike the child’s affidavit, asserting that Pridgeon’s attempt to involve the boy in his petition was traumatic to him and called into question his judgement and fitness as a custodial parent. In August 1981, the judge entered an order finding that adequate cause for hearing said petition for modification of custody was not established by the pleadings.
The judge added that it was quite possible that the fact that the child has been with the non-custodial parent for some period of time could be a factor to be considered along with other factors; in this case however, it was the only factor being considered. Therefore, the court denied the motion for a hearing for modification of custody. Pridgeon sought relief from the order by special action with the Arizona Court of Appeals. The primary change of circumstances that Pridgeon relied upon to support his motion was that the child had lived with him for two years, making friends and attending school in that area.
LaMarca contended that the same circumstances existed in 1979 and 1980 when the parties stipulated that the child’s best interest would be served by having him stay with Pridgeon for the year. Because these facts were incorporated into the terms of the court orders adopting the stipulation, LaMarca asserted that he waived any argument for custody modification based on these facts based on the “law of the case” doctrine. Pridgeon responded that the present could not be understood without considering past events.
The appeals court agreed, adding that in considering a motion for change of custody, the court must initially determine whether a change of circumstances has occurred since the last custody order and only after the court finds a change has occurred does the court reach the question of whether a change in custody would be in the child’s best interest. The appeals court did not, however, agree with LaMarca that the rules bar the court from considering any fact alleged in a change of custody motion if the same fact was before the court when the challenged custody order was made.
The court cited a case, Harder v. Harder, to support their decision which stated that once it has been decided that a given set of circumstances does or does not require the modification of the support provisions of a dissolution decree, no subsequent motion based exclusively on those same circumstances may be considered. The allegation and proof of same additional change occurring since the entry of the prior order is prerequisite to any later modification. Once that additional change has been established, its significance does not need to be determined in a vacuum. The significance of the change may, in fact, only become apparent when considered together with circumstances predating the order. The admissibility of specific items of evidence is to be determined not by whether that evidence related to circumstances predating an earlier order but by its relevancy to the issues raised in the subsequent proceeding.
Pridgeon also alleged that he was denied due process because he was not granted a hearing and contended that the “adequate cause” standard of the Arizona Statute concerning the subject was unconstitutionally vague and indefinite. He argued that a hearing is mandatory for the child’s best interest, especially in this case where the child expresses a strong desire to live with the petitioning parent. LaMarca asserted that the strong policy of the statute against casual modification of prior custody orders requires that a full hearing by reserved for only those cases in which the moving party has presented “adequate cause”. She claimed that due process requirements were satisfied by the court’s consideration of the motion and opposing affidavits.
The appellate court began its determination on the matter of adequate cause by examining the statute mentioned by the parties. The statute stated that a party seeking a modification of a custody order shall submit an affidavit or verified petition setting forth detailed facts supporting the requested modification and shall give notice, together with a copy of their affidavit or verified petition to other parties to the proceeding, who may file opposing affidavits. The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the pleading, in which case it shall set a date for a hearing on why the requested modification should not be granted.
The appellate court agreed with LaMarca, the standard to be followed is that a petitioner must present detailed facts which are relevant to the statutory grounds for modification, which are not merely cumulative or accusatory. They continued, explaining that the statute places upon the petitioning party the burden of showing adequate cause for a hearing and the affidavits presented by Pridgeon were clearly drafted with reference to the grounds for determination of custody set forth in the statute.
However, they agreed with LaMarca that Pridgeon’s affidavits merely stated conclusions without any factual support, which they ruled was not sufficient to meet the petitioner’s burden of showing detailed facts supporting the requested modification. Therefore, the petitioner’s affidavits were insufficient. The court supplemented their ruling with further information on the subject, stating that the statute also allows the opposing party to file opposing affidavits.
They believed the purpose of the opposing affidavits is to allow the party opposing a modification to allege additional facts to augment and extend the information provided by the petitioner. Such affidavits may complete the story and help the court understand the situation fully. The trial court may then consider all the affidavits in determining whether adequate cause for a hearing has been established.
However, if the affidavits are directly in opposition upon any substantial and crucial fact relevant to the grounds for modification, the court may not conduct a “trial by affidavit”, attempting to weigh the credibility of the opposing statements. In such a case, the court must hold a hearing. Pridgeon maintained that the relationship between parent and child is one of the highest natural rights requiring due process whenever his or her custodial rights to a child will be determined by a proceeding. From this, he concluded that a full hearing was required in his case.
The appellate court found this line of reasoning inapposite because no one was attempting to deprive Pridgeon of anything. He did not have custody at that point and no one was seeking to curtail his right to visit the child; rather, he was attempting to deprive LaMarca of custody. Since Pridgeon bore the statutory burden of proof of showing adequate cause for a hearing, the court believed that due process was satisfied by the procedure which required a court to review the petition and the affidavits of both parties to make a determination whether a hearing was required.
They also found that the standard was not unconstitutionally vague as the statute clearly required factual allegations, not mere conclusions. Therefore, they found that the trial court’s determination that Pridgeon’s motion and affidavits failed to establish adequate cause for a hearing was not an abuse of discretion and denied him relief.
This case demonstrates the importance of providing adequate cause before a parent petitions for a modification in custody. The court will not make a change to an existing custody arrangement casually and the burden for proving a need for the change lies with the petitioner. The petitioner may present events prior to the original order in their motion as long as their significance will be considered in conjunction with more recent events.
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