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Domestic Violence Presumption in Arizona Child Custody Cases

Posted on : September 11, 2019, By:  Chris Hildebrand
Mutual Domestic Violence and Child Custody in Arizona.

Learn About Domestic Violence Presumption in Arizona Child Custody Cases

Arizona law requires the court to make specific analyses if it determines a parent has engaged in domestic violence.

In its published decision in Deluna v. Petitto, — P.3d —, 2019 WL 4197236 (App.2019) the Court of Appeals explained the appropriate procedure the court must follow when examining domestic violence in family law cases.

Deluna involved a married couple with three children.

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Before their marriage in 2016, Father was arrested in 2013 after he assaulted Mother and her daughter from a previous relationship.

Mother did not cooperate in the prosecution and the charges were dismissed.

After the parties separated in 2017, Mother obtained an order of protection against Father, which he then violated.

Mother filed for divorce and at trial, the Court found that although Father had committed domestic violence, it was not “significant domestic violence” under A.R.S. § 25-403.03(A), and Father was not precluded from joint legal decision-making authority and parenting time.

Mother appealed.

Learn About the Domestic Violence Presumption in an Arizona Child Custody Case from Our Licensed Arizona Child Custody Attorney, Chris Hildebrand, at Hildebrand Law, PC..

Findings Required in a Child Custody Case When a Court Finds Domestic Violence Occurred

On appeal, Mother argued that she proved significant domestic violence, but even if the court determined it was not significant, the court erred by failing to apply the rebuttable presumption under A.R.S. § 25-403.03(D) that awarding joint legal decision-making authority to a parent who has committed any act of domestic violence is contrary to the child’s best interests.

The Court of Appeals agreed and found the court failed to apply the factors listed in A.R.S. § 25-403.03(E) to determine whether Father rebutted the presumption that joint legal decision making was not in the child’s best interests, after finding domestic violence had occurred.

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The Court of Appeals then explained analysis that must take place when reviewing the issue of domestic violence.

If the court determines there has been significant domestic violence, joint legal decision-making is precluded as a matter of law.

However, if the court finds any domestic violence, A.R.S. § 25-403.03(D) creates a rebuttable presumption and the court must make specific findings under A.R.S. § 25-403.03(E) to determine whether the presumption has been rebutted.

Mother also argued that the court erred by awarding parenting time to Father without conducting the analysis required by A.R.S. § 25-403.03(F).

The Court of Appeals agreed and ruled that because the court concluded that Father had committed domestic violence, it was required to explicitly determine whether Father had shown that parenting time will not endanger the child or significantly impair the child’s emotional development.

The court erred by failing to make specific findings explaining its reasoning and conclusions when it awarded parenting time to Father.

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Chris Hildebrand

Chris Hildebrand

Chris Hildebrand shared this article about the domestic violence presumption in Arizona to ensure everyone has access to information about child custody law in Arizona. Chris is a 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 child custody case should all be guided by the principles of honesty, integrity, and actually caring about what his clients are going through.