Change in Circumstances to Change Child Custody in Arizona

In Arizona, changing an order regarding legal decision making, parenting time and/or child support that is already in place requires that a petition to modify be filed. Either party may request the modification. In considering such a request, the court must determine whether the filing the requested modification met his or her burden of proof of establishing a significant and continuing change in circumstances to justify modification of the order already in place.

A Brief History of the Case: Boatley v. Mixon

In the unpublished Arizona Court of Appeals case of Boatley v. Mixon, the court found the parties were the parents of twin girls born in 2010. Previous proceedings had occurred in both family court and juvenile court regarding the parties’ children. In October 2013, an order was issued in both the family court and juvenile court granting Mother visitation with the girls. At an evidentiary hearing regarding a petition Father filed to establish orders for legal decision making authority and parenting time, a report from a psychiatrist who evaluated Mother was considered by the court.

The trial court affirmed Father’s sole legal decision making authority over the children and ordered Mother to have no contact with the children, Father or the children’s stepmother. In support of its decision, the family court cited the psychiatrist’s diagnosis of Mother with Antisocial Personality Disorder describing it as probable the condition would interfere with her ability to offer the children a “safe and secure environment.” The court also noted that the psychiatrist was of the belief that Mother was not likely to demonstrate minimally adequate parenting skills, and that a child in her care would be at risk for abuse.

One of the twins died a tragic death after which Mother filed a petition to modify legal decision making, parenting and child support. She stated that her daughter’s death was due to a lack of medical care and false reporting of her well being. She alleged that her surviving daughter was in danger due to Father’s and stepmother’s “criminal and domestic violence backgrounds.” The court sought additional information from the Phoenix Police Department as well as the Department of Child Safety (DCS) after which the court dismissed the petition. The court concluded that while the death of one of the children was tragic, there was no basis for the court to attribute the child’s death to misconduct on the part of Father or stepmother or that the remaining child in their care was seriously endangered. The trial court also noted serious concerns regarding the mental stability of Mother and her ability to care for the parties’ child. For these reasons, the court dismissed Mother’s petition. Mother appealed.

Overview of Issues Considered on Appeal: Boatley v. Mixon

On appeal, Mother raised a number of arguments that were not related to the dismissal of her petition for modification. As review on appeal is limited to the rulings specified in the notice of appeal, those issues were disregarded by the Arizona Court of Appeals. The Arizona Court of Appeals reviewed the requirements of A.R.S. Section 25-411(A), which prohibits filing a motion to modify a legal decision-making or parenting time decree earlier than one year after the legal decision making order was issued, unless there is reason to believe the present environment of the minor child leaves them in serious danger.

Mother’s petition was filed only six months after the previous order was issued and included only general allegations about Father without any supporting evidence. Claims that the deceased child did not receive adequate medical care appear to be contradicted by medical records attached to the petition that state the child was admitted to the hospital with “sickle cell crisis” and there were “no abuse concerns, no…neglect.”

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