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Hostile Communications: A Basis to Modify Child Custody In Arizona

Posted on : July 6, 2016, By:  Christopher Hildebrand
Hostile Communications as a Basis to Modify Child Custody Orders in Arizona.

Hostile Communications: A Basis to Modify Child Custody in Arizona

The Arizona Court of Appeals in the unpublished case of McGinnis v. McGinnis reviewed a trial judge’s ruling granting Mother sole legal decision making of the parties’ children. The father was also order to pay child support, as well as child support arrearages. Father appealed the court’s decision.

Mother and Father were married in 2011. Their first child was born in 2012. Mother filed a petition for legal separation in November of 2013. The parties agree to convert the petition for legal separation to a petition dissolution of their marriage. Shortly thereafter, their second child was born.

After the trial, the decree of dissolution was issued awarding sole legal decision making to Mother and ordering Father to pay $1,290.00 per month in child support. He was also ordered to pay $1,153.50 in child support arrearages. Father appealed.

On appeal, Father argued the trial judge erred in calculating child support, granting the mother sole legal decision making, and other evidentiary rulings related to the case.

McGinnis v. McGinnis: The Calculation of Child Support

Father claims Mother failed to adequately prove her earnings and argued the family court just “took her word” for it.  After review, the court of appeals found the court did not abuse its discretion. Mother’s testimony was relevant, she answered questions from her attorney, the family court and Father.

It was concluded testimony of her income was sufficient evidence because she had only been fully employed for one week. The court of appeals indicated the trial judge bad the discretion to determine the credibility of a all witnesses, including the wife in this case.

Father also claims the court did not consider Mother’s overtime income in the child support calculation. He argued Arizona Child Support Guidelines used to calculate child support state “…generally, the court should not attribute income greater than what would have been earned from full-time employment.” Arizona Child Custody Law(A.R.S. Section 25-320).

The court may consider overtime income if there is a history of overtime income on a regular schedule with expectations that it will continue. However, there was no evidence of Mother receiving overtime pay or a history of her working overtime pay.

Trial Court Demonstrating The Child Support Calculations

Father also argues the trial judge erred in the amount he was ordered to pay. He argued the judge did not indicate “how they arrived” at the specific child support amount. The record of the trial shows the court calculated the child support payment according to the Child Support Guidelines.

The record shows the court found Father’s income to be $48,000 per year, Mother’s income at $19 per hour, Father’s payment of $75 per month for the children’s health insurance coverage, Mother’s payment of $1,500 per month for day care, and the amount of parenting time awarded to Father.

The court of appeals found the trial judge did not abuse his discretion and appropriately applied the Child Support Guidelines.

McGinnis v. McGinnis: The Award of Sole Legal Decision Making

Father also argued the court erred in granting Mother sole legal decision making authority and failing to make specific findings to do so, as required by A.R.S. Section 25-403.

Upon review, it is apparent in the decree the court made specific written findings for each of the required factors listed in A.R.S. Section 25-403(B) and Section 25-403(A). Namely, the parents “toxic relationship” preventing effective co-parenting. The trial judge also reviewed the prior six months when Mother and Father shared temporary joint legal decision making authority.  The “trial” period demonstrated an inability of the parents to co-parent their children.


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It became necessary for the court to intervene during that time when Father refused to agree to not bottle feed the infant despite knowing Mother was breast-feeding the newborn baby. In addition, the parties’ emails to each other were inappropriate and harassing – even containing derogatory comments. The temporary joint legal decision making order situation made it clear a permanent co-parenting arrangement was not in the children’s best interests.

Behaviors Found To Be Contrary to Children’s Best Interests

Detailed findings were also made in regards to the best interests of the children (A.R.S. 25-403(A)). Father had significantly more difficulty in moderating his behavior, often indulging in belligerence, angry outbursts, engendered conflict, sabotage of relationships and verbal abuse towards Mother.

Other examples of the inability of Father to moderate his behavior included paying Mother money he owed her by placing it in a plastic bag inside a bag of dirty diapers. He also screamed at Mother in front of a minor child at the daycare. The court also found other “significant acts of domestic violence towards Mother”.

Due to these detailed findings, the court of appeals found no abuse of discretion in finding sole legal decision making to be in the children’s best interests.

Father also argues Mother “fabricated stories” at trial. The court of appeals indicated does not reweigh conflicting evidence. The responsibility for determining the credibility of witnesses lies with the trial judge.

McGinnis v. McGinnis: Court’s Failure to Rule on a Motion

Father also alleged the family court erred in various evidentiary rulings. Father filed a motion prior to trial alleging Mother was abusing prescription pills.  Father filed that motion in an attempt to obtain her medical records. The court never ruled on the motion. Father, however, did not bring this back to the attention of the court before completing the trial. As a result, the motion is automatically deemed to have been denied by operation of law.

The court of appeals also concluded the trial judge did not abuse his discretion by failing to rule on the motion because Father’s failed to retain an expert to interpret the records he sought to obtain.

Father argued that Mother should not have been allowed to play an audio recording of the parents screaming at each other at the daycare during the trial. He argued he was provided timely disclosure of that recording. Mother proved the recording was emailed to Father’s lawyer months prior to the trial.

The court of appeals held that a client is generally bound to have knowledge held by his or her attorney. As a result, the court of appeals concluded the trial judge did not abuse his discretion in allowing the recording to be played at trial.

On appeal, The Arizona Court of Appeals affirmed the trial court’s rulings and orders.


Hildeband Law, PC.


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