Prohibiting Consumption of Alcohol as a Condition of Parenting Time
Posted on : April 20, 2017, By: Christopher Hildebrand
Prohibiting Consumption of Alcohol as a Condition of Parenting Time in Arizona
The Arizona Court of Appeals-Division One rendered a decision in Dawson v. Dawson. Justice Rebecca White Berch delivered the decision for the appeals court, in which Presiding Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined.
Background of the Case
Father and Mother divorced in June of 2014 and shared joint legal decision-making and equal parenting time of their three daughters. During the afternoon of January 2, 2015, Father drank a beer while watching a football game and, a few hours later, took a double dose of his prescription anti-anxiety medication. Approximately one hour later Mother dropped off the children for Father’s scheduled parenting time.
While the kids were showing Father some of their Christmas presents, Father accidentally broke one belonging to the oldest daughter. She became upset with Father, and they argued. He sent her to her room. The daughter began texting Mother stating, “Dad was being an idiot and …. He broke one [of my presents].” Approximately two hours later the daughter texted Mother again and said “He’s really drunk mom … call some kind of authority.”
The mother called the police. Officers arrived and performed a welfare check and spoke to Father, but no incident report or charges were filed. That same night, the children requested Mother to take them home with her. The mother returned them to Father the next morning for the remainder of his parenting time. Subsequently, Mother filed a motion to prohibit Father from consuming alcohol within 24 hours of his parenting time and to place him on a random alcohol and drug testing program.
Prohibiting Consumption of Alcohol as a Condition of Exercising Parenting Time Visitation in Arizona.
During follow-up interviews by conciliation services, two of the children agreed that they never felt uncomfortable around their parents because of alcohol or drugs. However, one daughter did express feeling uncomfortable during the January 2015 incident. An evidentiary hearing was held in May of 2015. After hearing testimony from both Mother and Father, and reviewing the interviews conducted by conciliation services, the family court judge entered an order prohibiting both parents from consuming alcohol during parenting time or within eight hours before parenting time.
The judge also noted that on January 2, 2015, Father “was intoxicated to some degree” from an “improper use of medication with alcohol,” and the judge was “not convinced that it won’t happen again.” Concluding that Father’s position was unreasonable, the court awarded Mother attorney’s fees. Father filed a motion for a new trial or amended judgment and was denied without comment. In September of 2015 Father filed an appeal.
Arizona Court of Appeals Analysis and Decision
In December 2016 the Arizona Court of Appeals reviewed and considered both the best interests of the children in ordering consumption of alcohol be prohibited during parenting time and the award of attorney’s fees. For the following reasons the Appeals Court vacated the order and remanded for the trial court to make specific findings.
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.
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.
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.
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.
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!
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
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.
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.
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.
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.
Despite the unfortunate situation I found myself in, Chris Hildebrand @ Hildebrand Law helped me maneuver every step with professionalism, expertise, and even a sensitivity that was an added bonus.Chris and his staff helped me even when I didn't know I needed the help. In other words. . . they made sure we did not leave anything undone. And in the rare instance we needed the expertise of another professional, Chris knew exactly who to recommend.Chris also knew, because of his experience, what to anticipate down the road of litigation. That meant we were better prepared to meet the challenges head on, which lead to a more equitable and fair outcome. I appreciated that Chris did his best to meet my every need in a timely fashion, even if I had a simple question that required only a phone call or e-mail or if we needed to talk face-to-face.I highly recommend Chris Hildebrand @ Hildebrand Law, PC.
Father argued that in drafting the order prohibiting consumption of alcohol, the trial judge erred in failing to make specific findings of fact regarding the children’s best interests as required by Arizona statute. The Arizona Court of Appeals agreed. Parenting time determinations for an abuse of discretion was reviewed. The Court cited Hurd v. Hurd. “A court abuses its discretion if the record lacks competent evidence supporting the trial court’s decision, citing the prior case of Little v. Little, or the trial court made an error of law in the process of exercising its discretion, Kohler v. Kohler.”
When making or modifying a parenting time determination, the trial court must consider all of the best interest factors relating to the child’s physical and emotional well-being. If the case is contested, as this one was, the court must make “specific findings on the record about all relevant factors and the reasons for which the decision is in the best interests of the child.”
During the evidentiary hearing, the trial judge did observe that the January incident seemed to be “scary for the children” and he mentioned on more than one occasion the “best interests of the children.” However, the judge did not speak to the specific factors considered or explain his reasoning in finding a blanket prohibition of alcohol necessary to serve the children’s best interests. The minute entry order states only that the judge “considered the evidence and testimony presented at the hearing, the pleadings filed with the Court, the interviews conducted by the Court, and the applicable law.”
Given the isolated nature of the incident and the absence of any evidence of an ongoing problem with alcohol, such best interest findings were inadequate. The omission of statutorily mandated findings required the Appeals Court to remand the matter for appropriate findings and analysis regarding parenting time.
Restricting the Consumption of Alcohol as a Term of Parenting Time.
Award of Attorney’s Fees in a Child Custody Case
Father believed that the trial court erred in awarding Mother attorney’s fees because Father’s position was unreasonable. Specifically, Father argued that the court mistakenly presumed that his argument for contesting the prohibition on alcohol was that he would not be able to drink to excess. Instead, he asserts that his position was based on the “principle” that he has a right to have a drink in his own home as long as the children are not in danger and he is not drunk.
In awarding attorney’s fees to Mother, the trial judge concluded that Father’s insistence on the “principle” of his right to drink in his own home caused attorney fees to soar, that the large sum spent by the parties pursuing the alcohol issue would have been better spent for the children’s college funds. Because the case was remanded for more specific findings, the Court vacated the trial court’s attorney fee award.
If you have a question about child custody in Arizona, please call to speak to one of our experienced Scottsdale and Phoenix Arizona child custody attorneys at (480)305-8300.
As Seen on CBS News, ABC News, NBC News, and Fox News