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We want to talk to you about what is known as the domestic violence presumption in Arizona child custody cases.
To start, we are going to discuss what the domestic violence presumption is in an Arizona child custody case by discussing the Arizona Court of Appeals’ decision on that issue in the case of Deluna v. Petitto.
We will then discuss how the domestic violence presumption in Arizona child custody cases switches the burden of proof from the abused parent to the abuser to prove why joint legal decision making is in the best interests of the children despite the existence of domestic violence.
As part of that discussion, we need to distinguish between a significant act of domestic violence or significant history of domestic violence from a less significant act or history of domestic violence.
The former precludes an award of joint legal decision making, as more fully discussed in the Arizona Court of Appeals decision in Morris vs. Mandel, while the latter provide for a rebuttable presumption that joint legal decision making is not in a child’s best interests.
Defining the Domestic Violence Presumption in Arizona Child Custody Cases
Arizona law requires the court to make a domestic violence presumption in Arizona child custody cases if it determines a parent has engaged in domestic violence that is not considered to be significant.
The domestic violence presumption in Arizona child custody cases requires the abusive parent to prove that joint legal custody of a child is in the child’s best interests.
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.
Before their marriage in 2016, Father was arrested in 2013 after he committed an act of domestic violence by assaulting 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.
Domestic Violence Presumption Switches the Burden of Proof to the Abuser
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 domestic violence presumption in her Arizona child custody case pursuant to A.R.S. § 25-403.03(D).
That statute requires a finding 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.
The Court of Appeals then explained analysis that must take place in an Arizona child custody case when reviewing the issue of domestic violence.
If the court determines there has been significant domestic violence, joint legal decision-making, meaning joint legal custody, 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 in a child custody case in Arizona.
Factors That Need to Be Considered When Rebutting the Domestic Violence Presumption
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.
Summary of the Domestic Violence Presumption in Arizona
If a court determines an act of domestic violence has occurred in an Arizona child custody case, the judge must first determine if the act of domestic violence was significant or not.
If the act of domestic violence is found to be a significant act of domestic violence, a judge is precluded by law from granting the parents joint legal decision making over their children.
The abused parent will, therefore, receive sole custody of the children.
To the contrary, if the court determines an act of domestic violence occurred but concludes that the act of domestic violence was not significant, the court is not immediately precluded from granting the parents joint legal custody of their children.
Instead, the burden of proof shifts to the abuser to prove an award of joint legal custody is in the children’s best interests, pursuant to all of the factors set forth in Arizona revised statute section § 25-403.03(E).
Once the court has reviewed the evidence, a judge is required to state its findings as to each statutory factor to justify why either the abuser did not prove joint legal decision making is in the children’s best interest or, alternatively, why the abuser did overcome the domestic violence presumption that joint legal decision making is not in the children’s best interests when a parent commits an act of domestic violence against the other parent.
Arizona Attorneys for Domestic Violence Presumption Child Custody Cases
If you have questions about domestic violence presumption in Arizona child custody cases, 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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