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Overturning an Order of Protection in Arizona

Posted on : January 30, 2018, By:  Christopher Hildebrand
Overturning an Order of Protection in Arizona.

Overturning an Order of Protection in Arizona

Overturning an Order of Protection in Arizona.

Overturning an Order of Protection in Arizona.

The Arizona Court of Appeals in the case of Maschue vs. Warren had to address the issue of overturning an Order of Protection in Arizona when children are involved.

Father appeals the superior court’s ruling affirming an order of protection in favor of Mother and on behalf of the parties’ minor child, J.W. For the following reasons, we vacate the order of protection. Mother and Father are the parents of J.W. The parents divorced in October 2015, when the superior court entered a consent decree that incorporated their agreement for joint legal decision-making and shared parenting time. On November 15, 2016, Mother sought an order of protection on behalf of J.W. against Father. See A.R.S. § 13-3602(A). Mother alleged that Father refused to return custody of J.W. to her at the appointed time on November 6, 2016, and once Father relinquished J.W. to her custody, she observed marks on J.W.’s arm. J.W. informed Mother that Father hit her and squeezed her arm.

The court issued the order of protection the same day. Mother served Father with the order and he requested a hearing. Both Mother and Father testified at the hearing. Father admitted that he had refused to let J.W. return to Mother’s custody until she cleaned her bedroom, but denied that he had struck J.W. or otherwise harmed her. The superior court found that Father had interfered with the judicial process. Although Mother’s petition only identified herself as a person who should be protected, the court’s order prohibited Father from contacting both Mother and J.W. See Ariz. R. Prot. Order P. 5(a)(4)(A) (stating a petition filed on behalf of a minor must name the parent as plaintiff and specifically designate the minor). The court held proceedings regarding the alleged domestic violence and affirmed the order of protection. Father timely appeals.

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.
A Google User
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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.
A Google User
A Google User
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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14:58 04 Oct 17
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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16:03 22 Nov 17
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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22:14 28 Jun 17
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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I have worked with Hildebrand law for about 8 years. They are always ready to serve, provide guidance and give you a few options. When they provide you options they also take the time to walk you through the pros and cons of each and give you a recommendation of what is best, but will listen to you and support whatever course you choose after making and educated choice. I’d recommend them to my closest friends and feel Chris Hildebrand is now a friend to me.
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21:53 27 Feb 18
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Sam Franchimone
Sam Franchimone
22:09 12 Sep 13

Father challenges the superior court’s ruling affirming the order of protection on several grounds. However, we need not address many of the issues raised by Father because there is no indication in the record that the court complied with the requirements of Ariz. R. Prot. Order P. 35(b) before it prohibited Father from contacting J.W. We review the superior court’s decision to continue an order of protection for an abuse of discretion, but we review questions of law de novo. Michaelson v. Garr, 234 Ariz. 542, 544, (App. 2014). “Parents possess a fundamental liberty interest in the care, custody, and management of their children.” Kent K. v. Bobby M., 210 Ariz. 279, 284, (2005). “The state may not interfere with the relationship between parents and their children without providing due process of law.” Marianne N. v. Dep’t of Child Safety, 243 Ariz. 53, 60, (2017). Accordingly, the court cannot include a defendant’s child within the scope of a protective order unless it has reasonable cause to believe the alleged acts of domestic violence involving the child or the child has been or may be, physically harmed. Ariz. R. Prot. Order P. 5(b)(1) and 23(e)(2); A.R.S. § 13- 3602(E).

The Ruling on Overturning an Order of Protection in Arizona

Overturning Restraining Orders in Arizona.

Overturning Restraining Orders in Arizona.

Before the court may grant a protective order prohibiting a defendant from contacting his or her child, it must consider whether the child may be harmed if the defendant is permitted to maintain contact with the child and whether the child may be endangered if there is contact outside the presence of the plaintiff. Ariz. R. Prot. Order P. 35(b). Father argues that the superior court failed to consider these factors and therefore improperly modified the applicable parenting time order by continuing the order of protection. An order of protection expires one year after service on the defendant. A.R.S. § 13-3602(K). Accordingly, the order of protection served on Father in November 2016 has expired. However, because an order of protection carries with it “significant collateral legal and reputational consequences” that last beyond the expiration date, the expiration of the court’s order does not render Father’s appeal moot. Cardoso v. Soldo, 230 Ariz. 614, 619, (App. 2012).

Father refers to Ariz. R. Prot. Order P. 4(B)(1) in his opening brief. Effective January 1, 2016, that rule was renumbered Rule 35. Whether the court considered the Rule 35(b) factors at either the initial hearing or at the evidentiary hearing. The court did not discuss the factors on the record, and its minute entry ruling does not mention them. We conclude that the superior court erred by affirming the order of protection without weighing the required Rule 35(b) considerations. For the foregoing reasons, we vacate the order of protection. Because the order of protection has expired, we do not remand for further proceedings concerning its merits. Mother has not prevailed on appeal and therefore, we deny her request for an award of attorney’s fees. Although Father has prevailed, he does not cite a basis for his request for an award of fees, and we deny the request. See ARCAP 21(a)(2). We award costs on appeal to Father upon his compliance with ARCAP 21.

Contact the Experienced Arizona Order of Protection Attorneys at Hildebrand Law, PC at (480)305-8300 to schedule your personalized consultation with one of our Arizona order of protection attorneys.

Hildebrand Law, PC | Voted Best of Our Valley in Arizona Foothills Magazine.

Hildebrand Law, PC | Voted Best of Our Valley in Arizona Foothills Magazine.