Arizona Custody Decisions Cannot Be Delegated to an Expert
The Arizona Court of Appeals issued a decision in Depasquale v. Superior Court regarding a judge’s discretion to defer a judicial decision to an expert witness. The evidence at trial established that Mother and Father were divorced in 1991 with Mother being awarded sole custody of their child and Father granted reasonable visitation. In 1993, Father filed for a modification of that decision and was awarded joint legal custody and parenting time with Mother retaining primary physical custody.
Then, in May 1994, the court-appointed psychologist submitted a “Family Study Evaluation – Update” with various issues of concern regarding Mother’s parenting decisions and Father subsequently filed a second petition for a change of custody. The court reviewed the petition to determine if the evidence submitted provided adequate cause for a child custody modification hearing and found sufficient evidence for such a hearing, which was set for February 1995.
At the same time, the court ordered the parties to attend mandatory mediation with the psychologist to update his report if mediation proved to be inadequate. It was further ordered that the court would adopt the recommendations of the psychologist as an interim order of the court until an evidentiary hearing could be held.
However, before giving his recommendation that primary physical custody of the child should be given to Father, the psychologist neither met with nor communicated with Mother, even though she contested the allegations against her. Even under these circumstances, the judge followed through with his decision to adopt the psychologist’s recommendations and ordered the immediate transfer of primary physical custody of the parties’ child to Father with reasonable visitation for Mother.
On December 2nd, Mother moved the trial court for a stay of judgment. She also filed a special action with the Arizona Court of Appeals on December 30th, as well as a stay application on January 12, 1995.
The Arizona Court of Appeals denied her relief citing the short period of time between the trial court’s interim order and the time the trial was scheduled to occur. The court decided that since the ruling extended only until the permanent custody hearing in February that a ruling changing the previous decision was not in the best interest of the child, subjecting the child to an unnecessary short-term upheaval of his residence and schooling.
The Arizona Court of Appeals did accept jurisdiction, however, to clarify that some of the procedures followed by the court, in this case, were contrary to the statutes in place for the purpose of preventing any court in the future from delegating judicial decisions to expert witnesses or allowing interim transfers of custody without a hearing.
Arizona statutes do not require a hearing at the screening stage of determining whether there has been a showing of a substantial and continuing change in circumstances to justify scheduling a trial on a Petition to Modify Child Custody, so the appeals court decided that the trial court did not err when it limited the information it based its decision on what was presented by Father in his Petition.
The appellate court also decided the court did not err when it set a hearing date, referred the parties to mediation, and ordered the psychologist to update his report. However, the appellate court did hold the trial court incorrectly delegated the custody decision to the expert witness and delegated the trial court’s responsibility to exercise independent judgment regarding the child’s best interests.
Also, the trial court changed custody of the child without a hearing and without the mother’s consent. The appeals court did note that if a court faces an emergency situation it may make a temporary change of custody before a hearing is held or before the other parent is notified, but because this was not the case in this situation the court was required to provide mother notice and an opportunity to present evidence before changing the child custody orders.
What we learn from this case is that, while a trial court can use information provided by an expert witness as evidence as to what may be in a child’s best interest, it must still independently make the decision regarding what custody arrangements are in the child’s best interest after providing both parents an opportunity to present evidence at a trial.
The take away from this case is that an Arizona judge is prohibited from making a change in the custodial arrangements of a child, absent an emergency situation, without first providing both parents an opportunity to present evidence at a trial and, further, a judge may not delegate the obligation to decide what is in the best interests of a child to a third party.
Chris Hildebrand wrote this article to ensure everyone has access to information about family law in Arizona. Chris is a divorce and family law attorney at Hildebrand Law, PC. He has over 24 years of Arizona family law experience and has received multiple awards, including US News and World Report “Top Arizona Divorce Attorneys”, Phoenix Magazine “Top Divorce Law Firms”, and Arizona Foothills Magazine “Best of the Valley” award. He believes the policies and procedures he uses to get his clients through a divorce should all be guided by the principles of honesty, integrity, and, quite frankly, actually caring about what his clients are going through in a divorce or family law case. In short, his practice is defined by the success of his clients. He also manages all of the other attorneys at his firm to make sure the outcomes in their clients’ cases are successful as well.