Child Custody in Arizona

In the unpublished decision of Contreras v. Bourke, the Arizona Court of Appeals addressed whether a mother, Nancy, was denied due process of law when an Arizona family court judge issued an order decreasing the amount of time she could spend with the parties’ child. It is important to note this decision was not published by the Arizona Court of Appeals, which means you may not cite this decision as authority in support of your position with some limited exceptions.

The pertinent facts were that the Court issued a Temporary Child Custody Order granting parenting time to both Roger and Nancy. That Temporary Order also provided for an increase in Nancy’s parenting time when the parties’ child turned three years old. The court subsequently held a final trial and issued a Decree of Dissolution of Marriage granting Nancy and the child’s father, Roger, specific rights of parenting time, but neglected to include the Temporary Orders provision increasing Nancy’s parenting time when the child turned three years old.

After subsequent disputes continued to arise between the parties, the Court appointed a Parenting Coordinator to assist in resolving the day to day disputes that may arise between the parties regarding the implementation of the parenting plan set forth in the parties’ Decree of Dissolution of Marriage.

The assigned Parenting Coordinator issued a report to the court requesting clarification of the parenting plan set forth in the final Decree. Specifically, the Parenting Coordinator inquired as to whether the court made an error in the Decree when it failed to provide for an increase in Nancy’s parenting time when the child reached the age of three. The trial court responded to the inquiry by indicating it had made the mistake and that it intended to provide for an increase in Nancy’s parenting time when the child turned three years of age. The court then directed the Parenting Coordinator to make a recommendation to expand Nancy’s parenting time and minimize contact between the parties.

The Parenting Coordinator subsequently submitted a recommendation to the Court. Father’s sole objection to the report was to the Parenting Coordinator’s recommendation that the parent scheduled to receive parenting time shall pick up the child from day care no earlier that 12:30 pm. Father wanted the court to order that neither parent may pick up the child earlier than 4:30 pm.

The court scheduled a trial on Roger’s objection and subsequently issued an order modifying parenting time. That order actually decreased Nancy’s parenting time with the parties’ child. Nancy appealed the court’s decrease in her parenting time. Her appeal was that she was denied due process of law. The Arizona Court of Appeal agreed.

The Arizona Court of Appeals held that at no time did the Parenting Coordinator nor Father file a Petition to Modify Parenting Time and, thus, Nancy had no prior notice that a decrease in her parenting time was at issue before the hearing. As a result, she did not present evidence she otherwise would have presented had she received prior notice a decrease in her parenting time could be ordered.

The court also concluded that although the court asked the Parenting Coordinator to provide a recommendation for the implementation of Nancy’s¬†increased parenting time when the child turned three, the Court could not ask the parenting coordinator to issue recommendations decreasing Mother’s parenting time by even one day because that would violate Rule 74(E) precluding a Parenting Coordinator from making a recommendation that would “substantially” decrease her parenting time.

The take away from this case is that the filing of an objection to a Parenting Coordinator’s report does not permit a court to decrease a parent’s parenting time unless that parent also files a Petition for Modification of Parenting Time requesting a decrease in the other parent’s parenting time. Also, the court violates a parent’s constitutional right to due process by subsequently decreasing a parent’s parenting time under such circumstances. The other take away is that a Parenting Coordinator cannot make a recommendation that would reduce a parent’s parenting time by as little as one day.