What Can You Do If Your Children Are On an Arizona Order of Protection?
A protective order is not to be used as a way of determining custody of a child. If your child is included on a protective order, you have three options:
- Ask for a hearing to modify the protective order in the Court that issued it;
- If the order does not prohibit contact with children, arrange for parenting time through a neutral third party (a friend or relative) not involved with the order of protection;
- File an action in the Superior Court, as part of a domestic relations case, to clarify your custody rights or parenting schedule;
The fact an Order of Protection was issued and served upon you does not mean the judge who granted the Order of Protection believes you did the things you are alleged to have done to the other party to be granted an Order of Protection.
The law in Arizona simply requires a judge to determine whether the allegations in the Petition for Order of Protection are sufficient, if true, to justify issuance of the Order of Protection,. This is different than having a judge rule that you did or did not do the acts alleged in the Petition for Order of Protection.
If you request a hearing on an Order of Protection, both parties will have to testify under oath as to the allegations. You run the risk of the judge ruling you committed the acts, which can be used against you in a subsequent child custody trial because that judicial decision can be used against you.
If you children are listed on the Order of Protection, it may appear you are stuck between the proverbial “rock” and a “hard place.” Fortunately, you have another option. The judge who will decide on the Order of Protection is not the same judge that will be assigned to your child custody case.
The Arizona Court of Appeals has ruled a party may request the trial judge to remove the children from the Order of Protection even if the parent never requested a hearing on the Order of Protection. For more in-depth information on asking your trial judge to remove the children from the Order of Protection, as opposed to requesting a hearing on the Order of Protection, read our synopsis of the Arizona Court of Appeals decision in the Courtney v. Hon. Foster case.
Contact our experienced Scottsdale and Phoenix divorce attorneys for a consolation at (480)305-8300.