Order of Protection and Child Custody in Arizona
Problems can occur when children are listed on an order of protection. Listing children on an Order of Protection will likely conflict with child custody and parenting time orders granting a parent custody of or parenting time with his or her child. So, how are these issues resolved in Arizona? The Arizona Court of Appeals in the published case of Vera v. Rogers answered that question.
In the Vera case, Mother obtained an order of protection against Father. The children were listed as protected parties on that order of protection, so Father could not have any contact with the children. Father filed a motion for temporary orders requesting the family law court to issue temporary child custody and parenting time orders. Shortly after Father filed his motion for temporary child custody orders, he was served with the order of protection prohibiting him from having contact with the children.
The judge handling the temporary orders hearing granted mother sole custody but granted father with unsupervised parenting time with the children. The judge, however, made no mention about Father being prohibited from seeing his children because of the existing order of protection.
Both parents filed a motion for reconsideration requesting the court address the conflict between the order of protection that stated Father was to have no contact with the children and the temporary order granting Father parenting time in that judge’s temporary orders. The judge denied both parent’s motions for reconsideration.
Requesting a Hearing on the Order of Protection
Father then chose to request a hearing on the order of protection that was scheduled before a different judge. After a trial occurred on the order of protection, that judge sustained the order of protection and kept its order in place providing that father have no contact with the children.
Rule 5 of the Arizona Rules of Family Law Procedure allow one judge to hear both the temporary orders issues and the order of protection issues in a single hearing. A joint hearing on both issues before a single judge is particularly useful when children are on an order of protection and a parent is trying to establish or reinstate custody or parenting time with his or her children. This ensures that conflicting court orders are not issued in a case; which was the problem in this case.
Father relied upon the prior Arizona Court of Appeals decision in the Courtney case. In Courtney, the Arizona Court of Appeals decided whether a contested order of protection that had been sustained after of hearing in a municipal court could still be modified by a Superior Court judge in a subsequent child custody trial.
In Courtney, the Court of Appeals concluded a Superior Court judge could still modify an order of protection to harmonize the order of protection with the court’s issuance of child custody orders to remove the children from the order of protection.
Superior Court Judges Cannot Overturn Each Others’ Final Decisions
However, this case was found to be different than the facts in the Courtney case. Specifically, the judge that heard the contested order of protection hearing was not a municipal court judge but, instead, a Superior Court judge. In the Superior Court, a person who contests an order of protection is entitled to only one hearing.
Father requested that single hearing and lost. This rule exists to ensure a person who obtains an order of protection is not continually harassed by the defendant requesting multiple hearings to modify it.
The Court of Appeals also noted that a judge of the Superior Court cannot engage in “horizontal appellate review” of another judge’s decision to affirm an order of protection after a contested hearing. The court cited the case of Davis v. Davis for the proposition that a judge has no authority to review or change a judgment or decision of another superior court judge in a final ruling on an issue.
In the end, once the superior court judge affirmed the order of protection Father had only one option, which was to file an appeal from that ruling. He failed to appeal the ruling from the judge that heard the order of protection trial. The end result is that even though Father was awarded parenting time by one judge he could not see his children for one year, the length of time the order or protection lasts because a different superior court judge would not modify the order of protection.
Contact our experienced Phoenix and Scottsdale Arizona order of protection attorneys at (480)305-8300 to discuss your Arizona order of protection case.
Chris Hildebrand wrote this article about orders of protection and child custody in Arizona to ensure everyone has access to information about order of protection and child custody laws in Arizona. Chris is a divorce 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 actually caring about what his clients are going through in a divorce.