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Right to Notice and an Evidentiary Hearing in Arizona Courts

Posted on : December 21, 2016, By:  Christopher Hildebrand
Right to Notice and an Evidentiary Hearing in Arizona Courts

Right to Notice and an Evidentiary Hearing in Arizona Courts

A parent has the right to notice and an evidentiary hearing before her custody rights are modified. This includes both rulings regarding parenting time and those concerning legal decision-making authority. In Cruz v. Garcia, No. 2 CA-CV 2015-0174 (Ariz. Ct. App. Jun. 17, 2016) the Arizona Court of Appeals addressed these due process issues.

Facts and Procedure

Mrs. Cruz had a child, L.G., born in August 2001. In 2006, the state of Arizona brought a special paternity action against Mr. Garcia to establish child support obligations. In the initial decree, the court gave Mrs. Cruz legal custody of L.G. since the child lived with her.

In 2007, the court granted Mr. Garcia six hours of parenting time every other weekend. In 2008 the court increased his parenting time to one overnight visit every other weekend. In May 2013, Mr. Garcia asked the court for joint legal decision-making and equal parenting time. That same month, the sheriff searched Cruz’s home and found cocaine. Mr. Garcia then amended his petition requesting sole legal decision-making authority and suspension of Mrs. Cruz’s parenting time.

Mrs. Cruz and Mr. Garcia stipulated that L.G. would live primarily with Mr. Garcia, who would have temporary sole legal decision-making. All charges against Mrs. Cruz were dropped. In January 2015, she asked the court to vacate the Rule 69 agreement and restore her legal decision-making and unsupervised parenting time. She expressly requested an evidentiary hearing. The family court set a trial date in August 2015.

Right to Notice and an Evidentiary Hearing in Arizona Courts.

Right to Notice and an Evidentiary Hearing in Arizona Courts.

In June 2015, Mr. Garcia asked the court to halt Mrs. Cruz’s supervised visiting time. He charged that it had become detrimental to L.G. Mrs. Cruz claimed that Mr. Garcia had deliberately alienated L.G. from her. She filed an unsworn letter from the Dr. Pellegrin, who had been supervising Laura’s parenting time. In the letter Dr. Pellegrin wrote:

In . . . 20 years doing work with high conflict families, I have never seen a child so averse to even considering a gradual reunification with a parent [as L.G. is with Cruz]. . . . I am extremely concerned about the well-being of this child. I am not able to continue with my work in this case since I believe the situation is far too serious for weekly outpatient sessions to have any impact and, in fact, am concerned that this approach is making things worse. I am recommending a full custody evaluation in this case… I believe that this must be done immediately since too much time has already elapsed…

The family court held a hearing on June 24, 2015. At the hearing, the court suspending Mrs. Cruz’s parenting time. It ruled that “any further parenting time by Mrs. Cruz would seriously endanger the child’s mental and emotional health.”

It stated that the order was final and appealable and vacated the August 2015 trial date. Cruz appealed.

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
A Google User
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.
Google User
Google User
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.
A Google User
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16:03 22 Nov 17
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A Google User
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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
A Google User
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19:22 23 Aug 17
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A Google User
A Google User
17:44 23 Jun 16
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

 

Due Process Issues before the Court

Mother argues the court denied her due process by granting Mr. Garcia’s motion without notice and an evidentiary hearing. Mr. Garcia claims that she waived due process claims by not arguing them below. The Court rejected this. It stated that the Court may, in its discretion, consider constitutional arguments not raised below.

It also noted that the court did not release findings until two days after the hearing. That was the first time Mrs. Cruz learned that the court intended to make Mr. Garcia’s temporary legal decision-making authority permanent. She had no real opportunity to raise a due process objection at the hearing.

The Court concluded that Mrs. Garcia’s due process claims were properly at issue on appeal.

Due Process Violations in this Case

The Due Process Clause of the Fourteenth Amendment protects a parent’s interest in her child’s care, custody, and management. A parent is entitled to due process whenever her custodial rights are to be determined.

Due process requires notice of the hearing, as well as an opportunity to be heard, offer evidence and confront adverse witnesses. Determinations of legal decision-making and parenting time depend on the best interests of the child. Therefore, parents need time to prepare for hearings on these subjects. A family law judgment rendered without notice and a meaningful opportunity to be heard cannot stand.

Right to Notice and an Evidentiary Hearing in Arizona Courts.

Right to Notice and an Evidentiary Hearing in Arizona Courts.

Here, the Court of Appeals agreed with Mrs. Cruz that the lower court deprived her of procedural due process. She did not have notice that legal decision-making was at issue at the June 2015 hearing. Eight days before the hearing, the court reaffirmed that these matters would be heard at the August 2015 court trial. The parties understood that the June 2015 hearing would only address Mr. Garcia’s motion to suspend mother’s supervised parenting time. His papers did not request a change in legal decision-making authority. Therefore, neither Mrs. Cruz nor Mr. Garcia presented argument or evidence on legal decision-making at the hearing.

In addition, the court based its factual findings documents that were not admitted in evidence. This included the unsworn letter from Dr. Pettegrin and various hearsay statements from interview summaries. These documents, the Court said, cannot substitute for admissible exhibits and testimony subjected to adversary testing. The lower court said that it could “sua sponte” restrict or revoke parenting time. It said that A.R.S. § 25-411(J) gave courts this authority when parenting time endangered the health of the child.

The Court of Appeals disagreed. It said that the statute does not permit the court to revoke a party’s parenting time without notice and an opportunity to be heard. The court’s “sua sponte” authority is limited to placing conditions on the exercise of parenting time.

Disposition

The Court of Appeals vacated the family court’s June 24, 2015, minute entry and it’s June 26, 2015, in-chambers findings and orders. It remanded the case for an evidentiary hearing on the issues of parenting time and legal decision-making. It awarded Mrs. Garcia fees and costs on appeal.



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