Basis for Supervised Visitation in Arizona
Our Scottsdale Arizona Child Custody Attorney, Chris Hildebrand, of Hildebrand Law, PC Discusses What Needs to Be Proven for a Parent to Receive Supervised Visitation in an Arizona Child Custody Case.
The Arizona Court of Appeals considered the issues presented by the case of Hart v. Hart. Michael Robert Hart (Father) was granted sole legal and primary physical custody of the minor children he shares with Kari Rose Hart (Mother) with an additional order that Mother’s time with the children be supervised.
At the time of the divorce in 2003, Mother was awarded sole legal custody and primary physical custody of the children, followed by her remarriage and relocation with the children to Texas in 2005, Father’s relocation for 6 months to be near the children in Texas, Father’s return to Arizona after not finding steady employment, Mother’s separation from her new husband and subsequent move to an apartment with the children (that resulted in a change of schools).
Father filed a petition for mediation seeking physical custody of the children in June 2007 followed by a petition to modify custody. He also filed a petition for temporary orders allowing the children to remain with him in Arizona to start school. The subsequent hearing was continued until August 14, 2007 and the children were returned to live with their Mother in Texas in August. The court then concluded that it would be in the children’s best interest to live with Father in Arizona and for Mother to have supervised parenting time during summer and school breaks.
Mother filed a motion for reconsideration arguing that there was a lack of evidence and that the court failed to present findings regarding relevant factors. The court denied the motion without comment. After her motion was denied, Mother appealed the order.
In Making a Custody Decision Courts Must Consider Factors Enumerated by Statute
In making a custody decision, the court is required to consider the factors that are enumerated in Section 25-403(A) in regards to the best interests of the children. In a contested custody hearing, the court must make specific findings regarding all relevant factors and the reasons that make it in the best interests of the children (Section 25-403(B)). Failure to make the necessary findings equates to an abuse of discretion.
The Arizona Court of Appeals, in reviewing the decision of the family court did not find reference to any of the ten enumerated factors required to be addressed. Relevant facts are noted, but no findings of fact are made regarding the applicable factors, including:
- The wishes of both children and parents regarding custody;
- The interaction and relationship between children and each parent (and in this case, paternal grandmother as Father lives in her home and will rely on her to provide care);
- The adjustment of the children to home, school and community;
- The physical and mental health of the children and the parents;
- Which parent is more likely to provide frequent and meaningful contact with the other parent;
- Which parent has a history of providing primary care for the children;
- The presence of coercion and/or duress in obtaining a custody agreement; and
- Whether there were any false reporting of child abuse or neglect.
The family court did not document the weighing of statutory factors with findings as required. The Arizona Court of Appeals must consider the possibility that, had the trial judge done so, it may have resulted in a different outcome.
The Arizona Court of Appeals also found that the order for supervised parenting time on the part of Mother was based (per court documents) on the best interest of the children. Per Section 25-410(B), the order for supervised parenting time must be based on more than a best interest test.
The trial court expressly stated the standard it used to support its decision to order supervised parenting time was because it was in the best interests of the children; which is the wrong standard of proof. Instead, the trial judge was required to make a finding that unsupervised access placed the children at risk for serious harm before a trial court may order a parent to have supervised visitation with his or her children.
The Arizona Court of Appeals vacated the custody and supervised parenting time orders and remanded the case back to the family court trial judge to issue additional findings of fact and conclusions in accordance with Arizona law.
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