Domestic Violence and Joint Legal Decision-Making in Arizona
Domestic violence allegations are unfortunately part of many divorce proceedings. A recent decision by the Arizona Court of Appeals [i] clarifies how domestic violence may impact which parent can make decisions relating to children. In Arizona, parents may joint legal decision-making authority or it could be awarded solely to one parent. Legal decision-making is defined as the “legal right and responsibility to make all non-emergency legal decisions for a child including those of education, health care, religious training and personal care decisions".
Currently, legal decision-making for children and the issue of domestic violence is addressed in several Arizona statutes:
- The law [ii] requires the court to consider whether there has been domestic violence or child abuse [iii]. If the court determines domestic violence has occurred, it must then determine whether the domestic violence was “significant” or if there is a “significant history of domestic violence”. If the Family Law Court finds either, the law precludes joint legal decision-making. The non-abusing parent must be awarded sole decision-making authority.
- If the domestic violence is not “significant” [iv] , the law imposes a rebuttable presumption that the perpetrator of the domestic violence should not be awarded sole or joint legal decision-making authority.
- It is important to note that “significant” is not defined by Arizona laws. However, the Family Law Court has indicated that “significant” is the product of three factors - the seriousness of the particular incident, the frequency or pervasiveness of the domestic violence, and the passage of time and its impact.
- When making decisions concerning parenting time and legal decision-making authority, the Court is required to make specific findings supporting its decisions.
In the recent case, the Father assaulted the Mother and her daughter from a previous relationship in 2013. However, the Mother did not cooperate with the prosecution and the charges were dismissed. In 2016, they married. Shortly thereafter they separated and in 2017, the Mother obtained an Order of Protection based upon the Father’s stalking and harassing behavior. Father violated the Order of Protection by entering Mother’s residence and taking her cellphone after an argument.
Following their divorce trial, the Court concluded that the domestic violence was not “significant” and awarded Father joint legal decision-making authority. The Mother appealed the decision.
In reviewing their case, the Arizona Court of Appeals outlined the necessary steps when considering the issue of joint legal decision-making and domestic violence.
In determining the best interests of the child, the Court must determine whether domestic violence or child abuse has occurred. If no domestic violence or child abuse has occurred, that is the end of the analysis and it is not a factor.
If domestic violence was significant or if there has been a significant history of domestic violence, the Court cannot award joint legal decision-making authority.
If the Court finds that the domestic violence was not significant or finds that there has not been a significant history of domestic violence, then the rebuttable presumption must be addressed. It is contrary to the best interests of the child to award sole or joint legal decision-making authority to the perpetrator of the domestic violence. The Court shall consider the safety and well-being of the child and of the victim of the act of domestic violence to be of primary importance. Joint legal decision-making can only be awarded in the perpetrator of violence has rebutted the presumption. Further, the Court must make specific findings supporting its conclusion.
Perhaps the Court of Appeals wasted an opportunity to comment on the significance of the domestic violence. However, they clarified the importance of the rebuttable presumption arising from any act of domestic violence, namely, that is it is contrary to the best interests of a child to award sole or joint legal decision-making authority to the perpetrator of domestic violence.
About the Author: Mervyn T. Braude is a family law attorney at the Phoenix law firm of Jaburg Wilk. He is a State Bar of Arizona certified family law specialist. Mervyn can be reached at 602.248.1000.
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[i] Deluna v. Petitto, — P.3d —, 2019 WL 4197236 (App.2019)
[ii] A.R.S. § 25-403.03(A)
[iii] A.R.S. § 25-403.03
[iv] A.R.S. § 25-403.03(D)