Significant Domestic Violence and Sole Custody
Many parents have questions regarding the impact of significant domestic violence and sole custody in Arizona. Sole custody orders issued by an Arizona judge may be appealed to the Arizona Court of Appeals, which will review the case to determine if there were
apparent errors in interpreting the law in regards to the situation at hand or a trial judge’s abuse of his or her discretion.
A History of the Case: Hurd v. Hurd
Elizabeth Hurd and Heber J. Hurd were married in 1995 and had three children (all of which are minors as of the court proceedings here related). On October 26, 2004, there was an incident of violence reported on behalf of the two older children in which children told an emergency room nurse that their father hurt them. Police were contacted. The mother advised authorities she had been too afraid to report previous incidents. At this point, the mother and the children moved to Idaho.
In December of 2004, the father moved to Idaho. While in Idaho, the two oldest children attended counseling to address distress in relation to traumatic experiences and witnessing abuse and violence. In June 2005 the father moved back to Arizona. In August 2005 the mother and children moved back to Arizona as well. In November 2005 the parties became involved in disputes regarding care of their minor children. The mother obtained an Order of Protection (OOP). The father was prohibited from seeing the children.
In December 2005, the father filed for dissolution of marriage and sought joint custody of the minor children. Mother responded by seeking supervised parenting time for the father based on allegations of a history of domestic violence and the Order of Protection that was still in place. Temporary orders were issued granting the father supervised parenting time three times each week.
After interviews with Conciliation Services, it was agreed that the father would have the three minor children on Sundays. Shortly after this time, the mother lost her job and she moved herself and the children into a family shelter in October 2006.
She filed a petition to relocate with the children to Wisconsin in order to be closer to family. In November 2006, the mother obtained a new job, but she and the children stayed in the family shelter until February 2007. A trial was held on January 16, 2007 to consider custody and relocation issues. The father continued to have supervised parenting time with the three minor children.
A petition was filed on February 16, 2007, the father alleged that the mother was not bringing the children to his supervised parenting time at the father’s church as agreed. A hearing on this petition occurred on March 14, 2007 at which the mother was found in contempt for reasons stated. The court did not find her in contempt of any additional orders and refused father’s request for sanctions in response to the situation.
The court awarded the mother sole legal custody of the children and allowed her to relocate with the children to Wisconsin at the end of the school year (2006-7). The court’s decision was based on the “significant history of domestic violence.” The court found that the mother had been a victim of domestic violence at the hands of the father while the children were present.
The trial court also found that the children had been victims of domestic violence. It was ordered that the children receive counseling. The father was awarded unsupervised parenting time. A long-distance parenting plan was set in place to take effect at the end of the school year when the mother and children relocated. The father responded to the decision by filing for an appeal.
Appealing Child Custody Award, Relocation Determination and Attorney’s Fees:
The father alleges the court abused its discretion in awarding sole custody to the children’s mother stating that the court failed to make detailed findings of fact. He also denied a “significant history of domestic violence.” It is the findings of this court that there was sufficient evidence to support the family court’s findings of a “significant history of domestic violence”, including records of hospital visits, police reports, counseling records, etc. Thus the family court did not err when awarding sole custody of the children to the mother and specifically declining to award joint custody. The custody award was affirmed.
The Arizona Court of Appeals in this decision went so far as to say that the trial court was no longer required to even consider any of the other statutory factors normally required to be considered by the court once the Court made a finding of the existence of domestic violence or a significant history of domestic violence. Once that finding is made, the trial court is precluded by Arizona from awarding the perpetrator of that domestic violence from being awarded custody of the children.
In regards to the decision allowing the mother to relocate at the end of the school year with the children, the father claimed that the decision was an abuse of discretion because the court focused solely on the benefits the mother would gain rather than what was in the children’s best interests or how it would affect parenting time on the part of the father.
While the court heard testimony regarding the benefits of the relocation for the children, i.e. a support system, better schools, lower costs of living, etc., there is also evidence weighing against the move. The lack of a good support system in Arizona is an issue that should be addressed as it was found that the father owed approximately $28,000 in child support arrearages indicating a lack of adequate support from the father. But that fact is not enough to support the decision of the court regarding relocation.
The court abused its discretion on this matter by failing to find specific evidence of applicable statutory factors and reasons that make the relocation to be in the children’s best interests. Reserving comment on the merits of claims made previously, the relocation order is vacated and remanded to family court for additional findings in compliance with Arizona law.
The father’s request for attorneys’ fees and costs in relation to the appeal were denied as financial information regarding both parties is unavailable and the mother did not appear to make any unreasonable demands on appeal.
Remand for Further Findings: Heber J. Hurd, Petitioner-Appellant, v. Elizabeth Hurd, Respondent-Appellee
The appellate court held that the family court did not abuse its discretion regarding the award of sole custody to the mother of the three minor children. The appellate court did vacate the family court decision regarding the relocation of the children to Wisconsin and remand for additional findings that are consistent with Arizona law.