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When a Judge Must Set a Child Custody Hearing in Arizona

Posted on : December 6, 2016, By:  Christopher Hildebrand
When a Judge Must Set a Child Custody Hearing in Arizona

When a Judge Must Set a Child Custody Hearing in Arizona

The Arizona Court of Appeals in the unreported decision in the case of Thompson v. Vaughan addressed the requirements that must be met to file a motion to modify a child custody order in Arizona. The court of appeals evaluated whether an Arizona judge’s decision to dismiss a request for modification of custody hearing was in error.

The parties in the case were married in 2001. They had two minor children during their marriage. The wife filed for divorce in September of 2010. The parties had a strained relationship and consistently disagreed about parenting of their children. This contentious relationship continued after their divorce.

The divorce decree was entered on March 22, 2012. The decree granted the parents joint legal decision making and equal parenting time. The court appointed a Parenting Coordinator to assist in implementing the judge’s child custody orders. The parties were also required to participate in mediation for any disputes related to the children. They were required to complete mediation before they filed anything with the court.

Joint Legal Decision Making and Co-Parenting

The Parenting Coordinator’s recommendations were regularly approved and adopted by the family court after the decree. The court would make minor modifications to some of the Parenting Coordinator’s recommendations. The majority of the Parenting Coordinator’s time was spent dealing with Father’s inappropriate communications with Mother. The Parenting Coordinator also spent time addressing disagreements the parents had regarding counseling and medical care for their children.
When a Judge Must Set a Child Custody Hearing in Arizona
The Parenting Coordinator recommended Father’s communications to mother be monitored by a forensically informed mental health professional for at least thirty days. The parenting coordinator reported to the court that “the content of Father’s emails to Mother make co-parenting communication virtually impossible”. The court adopted that recommendation on October 24, 2013.

The Parenting Coordinator’s appointment was set to expire. Mother moved to extend the appointment of the Parenting Coordinator for another term. Father objected and requested a new Parenting Coordinator be appointed. The family court reappointed the existing Parenting Coordinator and affirmed her recommendations indicating Mother and Father continue to communicate poorly. The history of emails demonstrated Father’s sarcasm, and condescension towards Mother. Many of Father’s emails had little to do with parenting of the children, but included insults and derogatory comments directed at Mother. Mother occasionally reacted in a similar manner, but not to the same extent or with the same consistency.

The Parenting Coordinator informed Father his emails were not understandable. Father advised he had to communicate in “code” to meet the Parenting Coordinator’s rule that his communications be less than 70 words. He explained the “code” would be understood by Mother, but not by the Parenting Coordinator.

Father continued to discuss topics with Mother the Parenting Coordinator advised him not to discuss.  He used inflammatory language and approached every topic in a contentious manner. Father claimed he had no problem in the way he communicated even though he acknowledged he was not following the rules for communicating set down by the Parenting Coordinator “to the letter”.

The Parenting Coordinator made many efforts to address the problem. Father believed the recommendations from the Parenting Coordinator were unfair. The court found the Parenting Coordinator had not been unfair or one-sided in her reports. The reason most of the recommendations were focused upon Father was because of Father’s alleged actions. The court chose to reappoint the existing Parenting Coordinator. The court felt that replacing her with a different Parenting Coordinator would reward Father and punish the Parenting Coordinator for doing her job.

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Other problems occurred. One of the parties children needed a surgical procedure. Father disagreed and sought a second opinion. The second doctor claimed surgery was not necessary.  Mother sought another opinion as well that indicated surgery was not necessary. The parents turned to the Parenting Coordinator for guidance. She suggested the more conservative treatment in lieu of treatment. Although, she would revisit the issue in a few months.

It was later discovered Father surreptitiously recorded the doctors. He also allegedly pushed them to offer a non-surgical treatment option. Mother alleged Father’s conduct arose to the level of manipulating their true recommendations. Two of the physicians withdrew as the child’s physician.

The parties went to court regarding the issue and the judge ordered the child receive the more non-surgical treatment option. The court also ordered neither party shall communicate with the doctor in writing, unless a copy of that communication is sent to the other parent. The judge also ordered that neither party shall record the children’s medical doctor’s without the physician’s prior consent.

Dismissal of Mother’s Petition to Modify Joint Legal Decision Making

Father allegedly continued to ignore the recommendations of the Parenting Coordinator. In July of 2014, Mother filed a petition for modification of legal decision making alleging a substantial change in circumstances occurred since the entry of the child custody orders. She alleged these changes negatively affected the best interests of the children. Specifically, she cited to instances of Father’s inappropriate behavior and inability to communicate. She alleged these problems rendered co-parenting impossible.

Mother acknowledged the Parenting Coordinator was helpful. However, she alleged Father’s continued inappropriate communications had no stopped. Mother also noted the parties’ child needed a new doctor, but Father allegedly told her he would not agree to surgery for either of their children until they were 18 years old. The implication behind Father’s alleged statements is that he would not consent to surgery even if it was necessary.
When a Judge Must Set a Child Custody Hearing in Arizona
The trial court denied and dismissed Mother’s petition to modify child custody. The trial court decided her petition failed to demonstrate”adequate cause”, as required by Arizona statute 25-411, to permit a trial to be had on that petition. Mother appealed the trial judge’s decision to dismiss her petition to modify the prior child custody orders.

Mother’s Appeal of the Dismissal of her Petition to Modify Parenting Time

On appeal, Mother argued her petition for modification of legal decision making was based on a long-standing and systemic issue with Father’s communication. This communication issue effectively prevented the two parties from co-parenting their children.

The court of appeals noted its review of the record demonstrated the parents could not agree on a new doctor for their children. It also noted Father’s inappropriate communications and behavior, which continued after the divorce decree was issued. The court of appeals opined these problem interfered with collaborative parenting and decision making.

Mother argued the trial court abused its discretion in concluding her petition failed to state adequate cause to require a trial. She claimed her petition contained detailed allegations that supported her request to modify the child custody orders. She also felt her allegations demonstrated how the children’s best interests were affected.

She included the recent conflict over choice of physician for their children, poor communication between the parties, and bad behavior. She argued her allegations established collaborative parenting and legal decision making was not feasible. She alleged Father’s position that one of their children would not receive any surgery until he turned 18 years old also provided a basis to modify the legal decision making orders of the court.

Findings and Ruling From The Arizona Court of Appeals

The Arizona Court of Appeals concluded the dismissal of Mother’s petition was based upon Father’s allegations against Mother raised in his motion to dismiss Mother’s Petition. The court of appeals concluded the trial court, effectively, believed the allegations in Father’s motion to dismiss and did not believe the allegations in Mother’s petition. In so doing, the trial court concluded Father was more credible than Mother.

A trial court is prohibited from weighing the credibility of a party’s statements in a petition to modify child custody until the court first gives both parties the opportunity to present evidence at a trial. A trial court may not, as was the case here, simply conduct a “trial by affidavit”. Parties have a right to present evidence before their credibility is determined by the court. The court of appeals found the judge should not have dismissed Mother’s petition to modify the child custody orders and remanded the case back to the trial court for trial.

Hildeband Law, PC.


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