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Dismissing Petition to Modify Child Custody in AZ | Hildebrand Law, PC

Posted on : January 31, 2018, By:  Chris Hildebrand
Dismissing Petition to Modify Child Custody in AZ

Dismissing a Petition to Modify a Child Custody Order in Arizona

Parents sometimes reach an agreement concerning the custody of their children. The parents, however, sometimes cannot agree on what custody orders are best for their children in which case the court will decide the child custody issues after having a trial.

If there is not a child custody order in place, the court is required to enter child custody orders and a petition requesting the initial child custody order cannot be dismissed by the court absent some unusual circumstance.

However, the court can modify a child custody order that was previously issued by the court. However, the parent seeking to modify an existing child custody order must demonstrate the existence of a substantial and continuing change in circumstances before it has authority to modify an existing child custody order.

So, what supports a judge dismissing a petition to modify a child custody order in Arizona?

Fortunately, that question was answered by the Arizona Court of Appeals in the memorandum decision of Krieger vs. Duick.

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Requirements to Dismissing a Petition to Modify a Child Custody Order in Arizona

Filing the Correct Petitions and Motions to Modify a Child Custody Order

In the Krieger case, Mother appealed the family court’s dismissal of her petition to modify the existing child custody orders pertaining to which parent would have the right to make major life decisions for the child and their parenting time.

In that case, Mother and Father divorced in California. Mother and Father stipulated to a child custody agreement, pursuant to Rule 69 of the Arizona Rules of Family Law Procedure. The family court accepted that agreement and issued child custody orders based on that agreement.

Years later, Mother filed a petition to modify those child custody orders in which she also requested the court schedule a temporary orders hearing on the child custody issues.

Dismissing a Petition to a Modify Child Custody Order in Arizona

Mother, however, did not file a separate motion for temporary orders. Since Mother did not file a separate motion seeking the court schedule a temporary orders hearing, the court indicated it would not schedule a hearing. In response, Mother later filed a motion to schedule a temporary orders hearing.

It is important to note the parties were already scheduled for a hearing relating to other financial issues. The court ruled that it would address the petition Mother filed to modify the child custody orders at the same time the court held a hearing on those other financial issues.

During that hearing on the other financial issues between the parents, the court addressed Mother’s motion for a temporary order and her petition to modify the existing child custody orders.

Sufficient Reasons to Modify a Child Custody Order Must be Alleged in a Petition or Motion to Modify a Child Custody Order

The court noted Mother’s motion for a temporary orders hearing did not state sufficient reasons for the court to modify the custody orders.

The court allowed Mother to orally state a sufficient basis for modification to which she responded it was based upon decisions Father made for the children regarding their medical care and education.

The court noted that the educational choice was “not an emergency requiring a temporary order”.

The court also noted Father had final decision-making authority to make medical and educational decisions for the children in the existing child custody orders.

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Ongoing Conflict May Not Present a Basis to Modify a Child Custody Order in Arizona

In addressing Mother’s motion for a temporary order, the court found Mother’s concerns were insufficient for a temporary order that would have given Mother sole custody.

The court noted Mother’s reasons for seeking to modify the existing child custody orders were her allegations Father was abusing substances, he was arguing with his new wife, and she disagreed with the medical and educational decisions he made for their children.

The court found Mother’s allegations were the same or substantially similar to allegations she had made throughout the parties’ post-decree and high conflict relationship.

The court explained the core issues between the parties were extensively analyzed and addressed when the current child custody orders were previously entered by the court.

For those same reasons, the court appointed a Parenting Coordinator and a Therapeutic Interventionist when it issued the current child custody orders Mother was seeking to now modify.

The court found Mother’s most recent petition to modify custody orders was a continuation of old issues and did not establish a substantial and continuing change in circumstances.

Thus, the court dismissed Mother’s petition for failure to comply with Arizona Revised Statute § 25–411(A).

Mother then filed an appeal of the judge’s decision to dismiss her petition to modify the existing child custody orders to the Arizona Court of Appeals.

Mother’s Appeal of the Court Order Dismissing her Petition to Modify Her Child Custody Orders

On appeal, Mother argued the judge deprived her of a fair trial and due process when the court conducted a trial on her petition to modify custody without notice and violated various family court rules.

In considering a motion to modify custody, the Arizona Court of Appeals cited another appellate decision in the case of Christopher K vs. Markaa S case.

In the Christopher K case, the court of appeals ruled a family court “must first determine whether there has been a change in circumstances materially affecting the child’s welfare,” and only if such change exists, then evaluate whether modification “would be in the child’s best interests.”

The court of appeals also referenced the prior court of appeals decision in the case of Pridgeon vs. Superior Court where it held the court’s determination whether a change in circumstances has occurred “will not be reversed absent a clear abuse of discretion, i.e., a clear absence of evidence to support its actions.”

Still again, the court of appeals cited to its’ prior decision in the case of Marley vs. Spaulding where it held the party seeking the child custody modification has the burden of proving a change in circumstances that materially affect the child’s welfare.

A Petition to Modify a Child Custody Order Must Comply With Arizona Statutes and Family Law Rules

The court of appeals also notated that Rule 91(d) of the Arizona Rule of Family Court Procedure requires any petition to modify custody to comply with Arizona Revised Statute § 25–411.

Dismissal of a Petition to Modify Child Custody in Arizona

Under A.R.S. § 25–411(A), six months after the entry of a joint legal decision-making order, a parent may petition to modify an order regarding custody based on the other parent’s failure to follow the Court orders. The family court “shall deny” a petition to modify “unless it finds that adequate cause for hearing the motion is established by the pleadings.”

Pursuant to the prior decision from the court of appeals in the Pridgeon case, adequate cause for modification exists when “the facts alleged to constitute a change in circumstances” materially affect the welfare of the child”.

Citing the case of Siegert vs. Siegert, the court of appeals concluded the family court has wide discretion in assessing the adequate cause and that decision will be reversed only if “no reasonable judge would have denied the petition without a hearing.”

Due Process Requirements When Dismissing a Petition to Modify Child Custody Orders

Mother argued the judge violated her due process rights when it went forward with “trial” on her petition to modify her child custody orders without sufficient notice.

Here, the evidentiary hearing on October 27, 2016 was intended to only address the financial issues between the parties.

Mother was not yet entitled to a hearing on her petition to modify their child custody orders because the court had not yet determined whether the petition to modify the existing custody orders alleged sufficient allegations that, if found to be true after a trial, would constitute a substantial and material change in circumstances.

After the evidentiary hearing issues were resolved, the court addressed whether Mother’s petition established adequate cause for a hearing to satisfy A.R.S. § 25–411(L).

Because the court was considering only the adequacy of Mother’s petition, the court did not violate her due process rights for lack of notice because no hearing occurred concerning the petition.

Thus, no notice for a hearing was required and the court did not violate Mother’s due process rights.

Ruling on the Dismissal of a Petition to Modify Child Custody Orders Without a Trial or Management Conference

Mother next argues the court erred by placing “the original issues in abeyance” and then ruling on the “same Motion for Temporary Modification twice in a trial without notice.”

She claims that the court’s action violated Rule 74(b) of the Arizona Rules of Family Law Procedure. She claims that rule required the judge to either schedule a post-decree management conference or set the modification case for trial.

The record reflects, however, that Mother did not file a sufficient motion to schedule a temporary orders hearing because she did not state any basis in her motion for the court to schedule that hearing or conference.

When the hearing on the other financial issues occurred, the court allowed her to orally provide a sufficient basis for the court to consider modifying the child custody orders. After she did so, the court found her reasons to be inadequate to justify the court considering her motion to modify their child custody orders.

Mother claims she did not have adequate time to present her reasons because she did not receive sufficient notice. But Mother was not entitled to notice because the court could have denied her motion based on her failure to state a sufficient reason for the court to modify the child custody orders in her motion. Therefore, the court did not violate Rule 47(b) of the Arizona Rules of Family Law Procedure.

Meet Our Arizona Child Custody Attorneys

If you have questions about dismissing position to modify child custody in an Arizona divorce case, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona child custody and family law attorneys have over 100 years of combined experience successfully representing clients in child custody and family law cases.

Our family law firm has earned numerous awards such as US News and World Reports Best Arizona Family Law Firm, US News and World Report Best Divorce Attorneys, “Best of the Valley” by Arizona Foothills readers, and “Best Arizona Divorce Law Firms” by North Scottsdale Magazine.

Call us today at (480)305-8300 or reach out to us through our appointment scheduling form to schedule your personalized consultation and turn your Arizona child custody or family law case around today.

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