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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 the 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

When a Judge Must Set a Child Custody Hearing in Arizona.

When a Judge Must Set a Child Custody Hearing in Arizona.

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.

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 the 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 that 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.

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.  The 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 rose 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 doctors without the physician’s prior consent.

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
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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
A Google User
16:03 22 Nov 17
I was a client of Attorney Kevin Park for the dissolution of a divorce in 2016. And since I had never had the need to hire an attorney before for any purpose, I was somewhat apprehensive of the process. But the very calm and professional demeanor of Mr. Park eased my fears. He adeptly answered all my questions and I clearly knew the process and what to expect. And the skilled manner he communicated with opposing counsel was perfect. When it came down to negotiating with my spouse’s counsel, I knew I had selected the best attorney for my situation. What I noticed and appreciated was that he was using just the right amount of pressure with opposing counsel as was necessary. If you find yourself in this situation, you will want a seasoned professional like Mr. Park on your side. I'm very grateful that he was my attorney and not the opposition!
A Google User
A Google User
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
A Google User
18:16 18 Sep 17
Kevin Park of Arizona Estate Planning Attorneys was just what I needed for my divorce. He was very approachable and personable. He was quick to recognize what I needed and provided it quickly and efficiently. I hope to never need a divorce lawyer again, but if I know anyone else who does, I will definitely recommend Kevin.
A Google User
A Google User
19:22 23 Aug 17
I feel that Tracey Van Wickler is certainly one of the best family lawyers around. She is logical, intelligent, and truly cares. Tracey always does what is in the clients best interest, does it well, timely and with integrity. She is good at keeping her clients informed as to what is going on and clear in her communication both written and verbally. I have recommended Tracey to other people and will continue to recommend her. I recommended Tracey to someone who was having issues with their ex-wife and his response was, “I know how good she is because I went up against her and she ate me for lunch”. This same person was so impressed with her, he even recommended her to someone else, WOW, that is impressive! I am exceptionally happy with her attention to detail, her ability to explain things in ways that are easy to understand, as well as her ability to keep everyone focused on the most important things. I would recommend Tracey to anyone who may be in need of her services.
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.
Bassam Ziadeh
Bassam Ziadeh
21:20 02 Apr 18
I have worked with Hildebrand law for about 8 years. They are always ready to serve, provide guidance and give you a few options. When they provide you options they also take the time to walk you through the pros and cons of each and give you a recommendation of what is best, but will listen to you and support whatever course you choose after making and educated choice. I’d recommend them to my closest friends and feel Chris Hildebrand is now a friend to me.
Larry Flint
Larry Flint
21:53 27 Feb 18
Despite the unfortunate situation I found myself in, Chris Hildebrand @ Hildebrand Law helped me maneuver every step with professionalism, expertise, and even a sensitivity that was an added bonus.Chris and his staff helped me even when I didn't know I needed the help. In other words. . . they made sure we did not leave anything undone. And in the rare instance we needed the expertise of another professional, Chris knew exactly who to recommend.Chris also knew, because of his experience, what to anticipate down the road of litigation. That meant we were better prepared to meet the challenges head on, which lead to a more equitable and fair outcome. I appreciated that Chris did his best to meet my every need in a timely fashion, even if I had a simple question that required only a phone call or e-mail or if we needed to talk face-to-face.I highly recommend Chris Hildebrand @ Hildebrand Law, PC.
Sam Franchimone
Sam Franchimone
22:09 12 Sep 13

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 two instances of Father’s inappropriate behavior and inability to communicate. She alleged these problems rendered co-parenting impossible.

Judge Required to Set a Child Custody Hearing in Arizona.

Judge Required to Set a Child Custody Hearing in Arizona.

Mother acknowledged the Parenting Coordinator was helpful. However, she alleged Father’s continued inappropriate communications had not 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.

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 this 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 the 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.



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