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
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. The 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 to 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.
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 the inability to communicate. She alleged these problems rendered co-parenting impossible.
The 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. The 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.
If you have questions about when judge must set child custody hearing in an Arizona divorce case, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona child custody and family law attorneys have over 100 years of combined experience successfully representing clients in child custody and family law cases.
Our family law firm has earned numerous awards such as US News and World Reports Best Arizona Family Law Firm, US News and World Report Best Divorce Attorneys, “Best of the Valley” by Arizona Foothills readers, and “Best Arizona Divorce Law Firms” by North Scottsdale Magazine.
Call us today at (480)305-8300 or reach out to us through our appointment scheduling form to schedule your personalized consultation and turn your Arizona child custody or family law case around today.
More Articles About Child Custody in Arizona
- Access to a Child’s Medical Records in Arizona
- Adoption Attorneys in Arizona
- Required Affidavit in a Child Custody Case in Arizona
- Are Mothers Favored Custody Battles in Arizona
- Arizona Child Custody Attorneys
- Arizona Child Custody Statutes
- Arizona Uniform Child Custody Jurisdiction and Enforcement Act Statutes
- Changing a Child’s Last Name in Arizona
- Changing Child Custody in Arizona
- Child Custody and Child Support in Arizona
- Child Custody In Arizona
- Child Custody Laws in Arizona
- Child Custody Rights in Arizona
- Co-Parenting After Divorce in Arizona
- Custody of a Child to Grandparent in Arizona
- Delegation of Custody Decisions in Arizona
- Divorce and Grandparents Visitation in Arizona
- Effective Co-Parenting in Arizona
- Emergency Child Custody in Arizona
- Emergency Child Custody Orders in Arizona
- Enforce Parenting Time or Custody in Arizona
- Enforce Visitation Non-Custodial Parent in Arizona
- Grandparent’s Rights in Arizona
- How is Child Custody Determined in Arizona
- How to Change a Child’s Last Name in Arizona
- How to Enforce Parenting Time in Arizona
- How to Get Sole Custody in Arizona
- How to Modify Child Custody in Arizona
- How to Modify Visitation in Arizona
- Joint Custody and School Decisions in Arizona
- Joint Custody vs Sole Custody Arizona
- Joint Legal Custody or Joint Decision Making in Arizona
- Modifying Visitation With a Child in Arizona
- Moving Children Many Times in Arizona
- Order of Protection and Child Custody in Arizona
- Parent Information Program Class in Arizona
- Parent Move Out of State With A Child From Arizona
- Parental Alienation in Arizona
- Prepare for Child Custody Evaluation in Arizona
- Presumption of Equal Parenting Time in Arizona
- Restrictions in Arizona on Taking Children to Another Country
- Sole Legal Custody or Sole Decision Making in Arizona
- Sole or Joint Custody in Arizona
- Temporary Child Custody in Arizona
- Uniform Child Custody Jurisdiction and Enforcement Act in Arizona
- What Are the Child Custody Factors in Arizona
- What Determines Child Custody in Arizona
- What is a Child Custody Evaluation in Arizona
- What is a Parenting Coordinator in an Arizona Child Custody Case
- What Is Domestic Violence in Arizona
- What Types of Child Custody Are There in Arizona
- What Visitation or Parenting Time Schedules do Judges Order in Arizona
- Who Has Custody of Children When a Divorce is Filed in Arizona
- Who Is the Best Child Custody Lawyer in Arizona
- Withholding Child From Custodial Parent in Arizona
Chris Hildebrand wrote the information on this page about requirements that must be met to modify child custody in Arizona to ensure everyone has access to information about family law in Arizona. Chris is a divorce and family law attorney at Hildebrand Law, PC. He has over 24 years of Arizona family law experience and has received multiple awards, including US News and World Report “Top Arizona Divorce Attorneys”, Phoenix Magazine “Top Divorce Law Firms”, and Arizona Foothills Magazine “Best of the Valley” award. He believes the policies and procedures he uses to get his clients through a divorce should all be guided by the principles of honesty, integrity, and, quite frankly, actually caring about what his clients are going through in a divorce or family law case. In short, his practice is defined by the success of his clients. He also manages all of the other attorneys at his firm to make sure the outcomes in their clients’ cases are successful as well.
SCHEDULE YOUR CONSULTATION TODAY!PLEASE COMPLETE OUR NEW CLIENT INTAKE FORM TO SCHEDULE YOUR CONSULTATION TODAY!
As Seen on CBS News, ABC News, NBC News, and Fox News