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Mutual Acts of Domestic Violence and Child Custody in Arizona

Posted on : April 20, 2016, By:  Christopher Hildebrand
Mutual Domestic Violence and Child Custody in Arizona.

Mutual Acts of Domestic Violence and Child Custody in Arizona

In the unpublished decision in Okubena v. Montag, the Arizona Court of Appeals reviewed the decision of family court regarding its orders pertaining to legal decision making, parenting time and child support when acts of domestic violence had occurred. Father and Mother are the unmarried parents of two minor children. The two shared joint legal decision-making authority and equal parenting time with their older child, pursuant to an agreement the parents reached. There were no orders in place in relation to the younger child until Mother filed a petition to establish paternity, legal decision making, parenting time and child support, as well her request to modify existing orders for the older child.

The mother requested sole legal decision-making authority for both children with Father having supervised parenting time. She also filed a motion for temporary orders seeking the same relief from the court and her alleged Father was both verbally and physically abusive and was abusing alcohol. Mother also took out an order of protection against Father, which included the children.

The family court removed the children from the order of protection after the hearing on temporary orders. The court did find a recent (and significant history) of domestic violence by Father. In accordance with A.R.S. Section 25-403.03 (2015), the court could not grant joint legal decision making and, therefore, awarded Mother sole legal decision making and granted Father unsupervised parenting time with the children. Two months after the hearing on temporary orders, Mother filed an emergency motion alleging Father had been reported to the Department of Child Safety (DCS) by an unknown third party in relation to an incident with the older child.

Jennifer, thank you for being my attorney. I could not have been more pleased with the outcome of my family court hearing. Everything you have done for me throughout this case reflects in the final ruling of the judge. You helped me keep my head together and taught me a lot about myself as a person. I learned so much about my life from observing and listening to you. I will take all the advice you gave me to continue taking responsibility for my choices, continue to put the kids' needs first, and always stay truthful. Your diligence, dedication, and persistence in my case made what seemed impossible, possible. You are a wonderful person and an amazing attorney and I am stronger and more confident because of you.
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20:31 20 Sep 17
I just want to again thank the Firm for working with me all that it has. I could not have done anything without everyone's assistance. You, Chris and Stacey have been and continue to provide me with compassion and hard work towards my case. Also a very special thanks to Kip for taking my case in the beginning. Also continued support from him and his dedication to providing me with his expertise in this matter.
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21:41 07 Nov 17
After interviewing several law firms, I came across Jennifer Shick, and her firm, who I hired to represent me for my Family Court case. Jennifer has extensive knowledge of the law and is determined to bring the truth to every issue involved within the case. Throughout my case, Jennifer was prepared meticulously as well as went above and beyond all of my expectations. Even when the other party tried to differ from the truth, lie to the Judge, and turn situations around, Jennifer remained attentive and provided substantial evidence to show the judge the facts as well as the proof to support what was the best interests of my children. Additionally, Jennifer helped me endure many difficult experiences, situations and inspired me to remain positive throughout the entirety of my case. Her kindness, compassion, and professionalism helped me through very difficult times and made the process feel a thousand times lighter on my shoulders. She truly has my children and my best interest at heart and I trust her perspective as well as her honesty on each and every aspect of my case. She lessened the burden on my shoulders and even when I felt like the case was not going to go in my favor, Jennifer was open-minded and reassured me that the Judge would, in fact, see the truth, which he did and the case went in my favor. After nine months of court, everything finally came together. I cannot declare how much Jennifer has been an outstanding attorney. She addressed each and every issue with diligence, she cares about her clients and their families. Jennifer genuinely cares about her clients and her dedication to the details of the case was remarkable. Overall, I am extremely pleased with Jennifer’s services and I am truly thankful that I was so blessed to have her represent my children and me. I highly recommend Jennifer as one of the best attorneys in Arizona and if the situation ever arises, I will definitely have her represent my children and me again.
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Dear Stacey and Kip, How can I ever thank you enough for helping me through the most difficult time in my life? I couldn't put into words my heartfelt gratefulness. You both were so compassionate and professional at every given moment throughout this process with me. I thank you from the bottom of my heart. You helped me to regain my freedom.
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I was a client of Attorney Kevin Park for the dissolution of a divorce in 2016. And since I had never had the need to hire an attorney before for any purpose, I was somewhat apprehensive of the process. But the very calm and professional demeanor of Mr. Park eased my fears. He adeptly answered all my questions and I clearly knew the process and what to expect. And the skilled manner he communicated with opposing counsel was perfect. When it came down to negotiating with my spouse’s counsel, I knew I had selected the best attorney for my situation. What I noticed and appreciated was that he was using just the right amount of pressure with opposing counsel as was necessary. If you find yourself in this situation, you will want a seasoned professional like Mr. Park on your side. I'm very grateful that he was my attorney and not the opposition!
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Chris is a smart and aggressive attorney for his clients. Chris always tries to reach a fair settlement of his cases. I’ve represented clients when Chris was the opposing counsel and while he is professional and amicable to work with, he does not back off on what he needs to do for his client
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Kevin Park of Arizona Estate Planning Attorneys was just what I needed for my divorce. He was very approachable and personable. He was quick to recognize what I needed and provided it quickly and efficiently. I hope to never need a divorce lawyer again, but if I know anyone else who does, I will definitely recommend Kevin.
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I feel that Tracey Van Wickler is certainly one of the best family lawyers around. She is logical, intelligent, and truly cares. Tracey always does what is in the clients best interest, does it well, timely and with integrity. She is good at keeping her clients informed as to what is going on and clear in her communication both written and verbally. I have recommended Tracey to other people and will continue to recommend her. I recommended Tracey to someone who was having issues with their ex-wife and his response was, “I know how good she is because I went up against her and she ate me for lunch”. This same person was so impressed with her, he even recommended her to someone else, WOW, that is impressive! I am exceptionally happy with her attention to detail, her ability to explain things in ways that are easy to understand, as well as her ability to keep everyone focused on the most important things. I would recommend Tracey to anyone who may be in need of her services.
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I retained Hildebrand Law after interview a number of firms in the valley. Working with Michael C. was incredibly easy and informative. My case progressed in such a organized and thought out way to ensure that my needs were met. Michael was incredibly proactive and was able to see far ahead into my case to steer clear of some roadblocks. I would not hesitate to recommend Michael Clancy, and Hildebrand Law in general, to anyone.
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Sam Franchimone
Sam Franchimone
22:09 12 Sep 13
Mutual Acts of Domestic Violence and Child Custody in Arizona.

Mutual Acts of Domestic Violence and Child Custody in Arizona.

The family court issued an emergency order limiting Father’s parenting time to supervised parenting time and confirmed it on a temporary basis following a hearing. After conducting an evidentiary hearing, the court concluded that both parties engaged in acts of domestic violence, but that Father was “by far the primary perpetrator.” The court also concluded the evidence indicated Father had engaged in recent acts of domestic violence, as well as a significant history of domestic violence against Mother. As per A.R.S. Section 25-403.03 and Section 25-403.03(D), the court awarded Mother sole legal decision making with the “best interest of the children” factors as defined in A.R.S. Section 25-403(A) supporting the decision of the court.

The court also found Mother’s accusation of Father’s abuse of alcohol to be credible and ordered supervised parenting time until such time Father fulfilled stipulated requirements including negative test results for alcohol consumption. The requirements were satisfied and unsupervised parenting time was restored. Mother was awarded a portion of her requested attorney’s fees and Father filed a notice of appeal.

Okubena v. Montag: Arguments Presented On Appeal

On appeal, Father argued the trial court erred by applying the presumption in subsection D of the statute against him because both parties were involved in committing acts of domestic violence. In consideration of that argument, the appeals court turned to the fact that the ruling was based on more than that presumption. According to A.R.S. Section 25-403.03(A), the court cannot award joint legal decision making if it finds significant domestic violence or a significant history of domestic violence.

In the case of Okubena v. Montag, the court found both and, therefore, could not award joint legal decision-making. In such cases, the safety and well being of both the child and the victim of the domestic violence and abuse are of primary importance to the court (as stated in A.R.S. Section 25-403.03(B). According to state law, the court also considered these issues, as well as the “best interest of the children” factors as outlined in A.R.S. Section 25-403(A) and substance abuse considerations as outlined in A.R.S. Section 25-403.04.

While the appeals court disagreed with Mother’s interpretation that the presumption in Section 25-403.03(D) is only applicable to Father as the primary perpetrator, this is not the sole basis for the court’s decision. Additionally, Father’s argument that the court erred by not considering Mother’s domestic violence was incorrect.  The family court did consider Mother’s domestic violence acts alongside Father’s. The trial court relied on more than the presumption that joint legal decision is not in the children’s best interest of the children when a significant act of domestic violence has occurred or a significant history of domestic violence has been found to exist.

The court also based its orders on the factors contained within A.R.S. Section 25-403.04(A); which provides a rebuttable presumption that sole or joint legal decision making by a parent is not in the best interests of the children when a parent has abused alcohol within the twelve months prior to a petition being filed.

The appeals court also found Father’s argument on appeal that he was not provided with adequate due process rights during the trial to be invalid. The court has broad discretion regarding the imposition of reasonable time limits on the time spent presenting a parties’ case unless doing so prevents a party from presenting significant evidence. The evidentiary hearing was set for three and a half hours. The parties were able to request additional time if needed, which Father did not request. The court repeatedly informed the parties how much time was remaining. After hearing Mother testify to several occurrences of domestic violence, Father called two character witnesses before testifying. He did not address the domestic violence allegations until his time was almost finished and at that time offered a written narrative statement in the place of his testimony.

Father was not prevented from offering evidence to the court to rebut Mother’s allegations. Father failed to present admissible evidence within the allotted time and then failed to request additional time to do so. Predetermined time limits are not a denial of due process rights, so the trial court did not err.

Father also argues that the award of attorney’s fees to Mother should be reversed alleging that the court had no evidence to support its conclusions that he behaved unreasonably. The court found Father’s denial of the acts of domestic violence unreasonable in light of the evidence. The court of appeals does not reweigh evidence on appeal. Father also argued that the award of attorney’s fees was an abuse of discretion as he had a due process right to deny allegations of domestic violence that were made. The issue of due process was already considered and the same decision applies here. The Court of Appeals of Arizona concluded the family court’s order awarding sole legal decision-making and attorney’s fees to Mother was not in error.



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