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Violation of Due Process Rights in an Arizona Child Custody Hearing

Posted on : September 13, 2017, By:  Christopher Hildebrand
Violation of Due Process Rights in Arizona Child Custody Hearing.

Violation of Due Process Rights in an Arizona Child Custody Hearing

The Arizona Court of Appeals in the Cruz v. Garcia case had to address whether Mother’s Due Process rights were violated when a judge entered final child custody orders granting Father sole legal decision-making and suspending Mother’s parenting time at an initial hearing.

History of the Case | Cruz v. Garcia

Mother and Father are the parents of a twelve-year-old child. Father initially filed a Petition requesting an equal time-sharing arrangement between the parties. However, he filed an Amended Petition after that seeking sole legal decision-making and an application to suspend Mother’s parenting time. He alleged law enforcement seized drugs at Mother’s home. Mother was not convicted of this alleged offense.

Violation of Due Process Rights in an Arizona Child Custody Hearing

Violation of Due Process Rights in an Arizona Child Custody Hearing

At a Temporary Orders hearing, the parents agreed Father would retain sole legal decision-making and Mother would receive supervised parenting time. Mother, after that, filed a Petition seeking joint legal decision-making and unsupervised parenting time. The court set a trial on Mother’s Petition in August of 2015. However, Father filed a Petition seeking to, once again, suspend Mother’s parenting time. The mother claimed Father was alienating the child from her.

The trial court held an evidentiary hearing on Father’s petition to suspend Mother’s parenting time in June of 2015. After that hearing, the trial court issued final child custody orders that granted Father sole legal decision-making, suspended Mother’s parenting time, and vacated the August 2015 trial on Mother’s Petition for Joint Legal Decision Making and Unsupervised Parenting Time. The question becomes when is a court required to hold a child custody hearing in Arizona.

Violation of Due Process Rights in an Arizona Child Custody Hearing – The Ruling

Mother filed an appeal of the trial court’s decision. She argued her Due Process rights were violated by the court entering final child custody orders in her case and vacating the trial on her Petition for Joint Legal Decision Making and Parenting Time. The Arizona Court of Appeals stated:

“[A] parent is entitled to due process whenever a proceeding will determine his or her custodial rights to a child. Due process entitles a party to notice and an opportunity to be heard at a meaningful time and in a meaningful manner, as well as a chance to offer evidence and confront adverse witnesses.”

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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The Arizona Court of Appeals ruled the trial judge erred in vacating Mother’s August 2015 trial because the court eight days earlier stated it was only Father’s Petition that would be heard at the June 2015 hearing. The Arizona Court of Appeals also noted the trial court relied upon exhibits that had not been receiving into evidence.

The appellate court also disagreed with the trial court by indicating Arizona Revised Statute Section 25- 411(J) by ruling:

“[T]he court’s authority to impose ‘restrict[ions]’ on parenting time sua sponte under A.R.S. § 25- 411(J) is limited to placing conditions on the exercise of parenting time, such as supervision or geographical restrictions.”

As a result, Mother did not receive proper notice of the issues to be litigated at the June 2015 hearing and, therefore, was denied Due Process.

If you have a question about due process in Arizona, please call to speak to one of our experienced Scottsdale and Phoenix due process Arizona attorneys at (480)947-4339.


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