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Mutual Acts of Domestic Violence and Child Custody in Arizona

Posted on : April 20, 2016, By:  Christopher Hildebrand
Mutual Domestic Violence and Child Custody in Arizona.

Mutual Acts of Domestic Violence and Child Custody in Arizona

In the unpublished decision in Okubena v. Montag, the Arizona Court of Appeals reviewed the decision of family court regarding its orders pertaining to legal decision making, parenting time and child support when acts of domestic violence had occurred. Father and Mother are the unmarried parents of two minor children. The two shared joint legal decision making authority and equal parenting time with their older child, pursuant to an agreement the parents reached. There were no orders in place in relation to the younger child until Mother filed a petition to establish paternity, legal decision making, parenting time and child support, as well her request to modify existing orders for the older child.

Mother requested sole legal decision making authority for both children with Father having supervised parenting time. She also filed a motion for temporary orders seeking the same relief from the court and she alleged Father was both verbally and physically abusive and was was abusing alcohol. Mother also took out an order of protection against Father, which included the children.

The family court removed the children from the order of protection after the hearing on temporary orders. The court did find a recent (and significant history) of domestic violence by Father. In accordance with A.R.S. Section 25-403.03 (2015), the court could not grant joint legal decision making and, therefore, awarded Mother sole legal decision making and granted Father unsupervised parenting time with the children. Two months after the hearing on temporary orders, Mother filed an emergency motion alleging Father had been reported to the Department of Child Safety (DCS) by an unknown third party in relation to an incident with the older child.

The family court issued an emergency order limiting Father’s parenting time to supervised parenting time and confirmed it on a temporary basis following a hearing. After conducting an evidentiary hearing, the court concluded that both parties engaged in acts of domestic violence, but that Father was “by far the primary perpetrator.” The court also concluded the evidence indicated Father had engaged in recent acts of domestic violence, as well as a significant history of domestic violence against Mother. Arizona Community Property Law As per A.R.S. Section 25-403.03 and Section 25-403.03(D), the court awarded Mother sole legal decision making with the “best interest of the children” factors as defined in A.R.S. Section 25-403(A) supporting the decision of the court.

The court also found Mother’s accusation of Father’s abuse of alcohol to be credible and ordered supervised parenting time until such time Father fulfilled stipulated requirements including negative test results for alcohol consumption. The requirements were satisfied and unsupervised parenting time was restored. Mother was awarded a portion of her requested attorney’s fees and Father filed a notice of appeal.

Okubena v. Montag: Arguments Presented On Appeal

On appeal, Father argued the trial court erred by applying the presumption in subsection D of the statute against him because both parties were involved in committing acts of domestic violence. In consideration of that argument, the appeals court turned to the fact that the ruling was based on more than that presumption. According to A.R.S. Section 25-403.03(A), the court cannot award joint legal decision making if it finds significant domestic violence or a significant history of domestic violence.

In the case of Okubena v. Montag, the court found both and, therefore, could not award joint legal decision-making. In such cases, the safety and well being of both the child and the victim of the domestic violence and abuse are of primary importance to the court (as stated in A.R.S. Section 25-403.03(B). According to state law, the court also considered these issues, as well as the “best interest of the children” factors as outlined in A.R.S. Section 25-403(A) and substance abuse considerations as outlined in A.R.S. Section 25-403.04.

While the appeals court disagreed with Mother’s interpretation that the presumption in Section 25-403.03(D) is only applicable to Father as the primary perpetrator, this is not the sole basis for the court’s decision. Additionally, Father’s argument that the court erred by not considering Mother’s domestic violence was incorrect.  The family court did consider Mother’s domestic violence acts alongside Father’s. The trial court relied on more than the presumption that joint legal decision is not in the children’s best interest of the children when a significant act of domestic violence has occurred or a significant history of domestic violence has been found to exist.

The court also based its orders on the factors contained within A.R.S. Section 25-403.04(A); which provides a rebuttable presumption that sole or joint legal decision making by a parent is not in the best interests of the children when a parent has abused alcohol within the twelve months prior to a petition being filed.

The appeals court also found Father’s argument on appeal that he was not provided with adequate due process rights during the trial to be invalid. The court has broad discretion regarding the imposition of reasonable time limits on the time spent presenting a parties’ case, unless doing so prevents a party from presenting significant evidence. The evidentiary hearing was set for three and a half hours. The parties were able to request additional time if needed, which Father did not request. The court repeatedly informed the parties how much time was remaining. After hearing Mother testify to several occurrences of domestic violence, Father called two character witnesses before testifying. He did not address the domestic violence allegations until his time was almost finished and at that time offered a written narrative statement in the place of his testimony.

Father was not prevented from offering evidence to the court to rebut Mother’s allegations. Father failed to present admissible evidence within the allotted time and then failed to request additional time to do so. Predetermined time limits are not a denial of due process rights, so the trial court did not err.

Father also argues that the award of attorney’s fees to Mother should be reversed alleging that the court had no evidence to support its conclusions that he behaved unreasonably. The court found Father’s denial of the acts of domestic violence unreasonable in light of the evidence. The court of appeals does not reweigh evidence on appeal. Father also argued that the award of attorney’s fees was an abuse of discretion as he had a due process right to deny allegations of domestic violence that were made. The issue of due process was already considered and the same decision applies here. The Court of Appeals of Arizona concluded the family court’s order awarding sole legal decision-making and attorney’s fees to Mother was not in error.


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