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Exercise Caution When Seeking to Modify Parenting Issues in Arizona Family Law Cases

Categories: Family Law, Article

Rule 91 issues arise when modifying parenting rights

Recently, the Arizona Court of Appeals clarified that only one parent is required to file a motion to modify legal decision-making or parenting time. In Sundstrom v. Flatt, Mother exercised sole legal decision-making authority and shared equal parenting time with Father. She filed a petition to retain sole legal decision-making, reduce Father’s parenting time or impose supervised visitation, and modify child support. The petition was filed pursuant to A.R.S. § 25-411 and Arizona Rule of Family Law Procedure 91 (“Rule 91”). 

In advance of the hearing on Mother’s Rule 91 petition, Father filed documents in which he sought sole legal decision-making. He filed both a motion for temporary orders and submitted a pretrial statement prior to the Rule 91 hearing.  Mother opposed Father’s request because he had not filed a competing Rule 91 petition.  

At the Rule 91 hearing, Mother unsuccessfully moved to withdraw her petition, and the trial court ultimately awarded sole legal decision-making to Father. The trial court reasoned that it was authorized to modify legal decision-making because Mother’s petition complied with Rule 91. Mother appealed, insisting that the trial court erred because Father had not filed his own Rule 91 petition. 

The Arizona Court of Appeals agreed with the trial court, and affirmed the ruling. The appellate court held that so long as the petitioning party has notice of the other party’s claim for “greater decision-making or parenting time, the court has complete discretion to rule in accordance with the evidence presented.” The court further noted that Mother’s construction of the governing law would produce an illogical result because it “would allow the [trial] court to rule only in favor of the party petitioning for a modification, and therefore require both parents to file petitions to allow the court to grant either party legal decision-making.” The court of appeals therefore cautioned that “[o]nce a party has petitioned to modify legal decision-making and the court has found adequate cause for a hearing, the petitioning party must be prepared for the possibility that the court will not view the evidence favorably to the petitioner.”  

Sundstrom establishes that if a petition to modify complies with the relevant rule and statute, and establishes adequate cause to invoke a hearing, the trial court is not precluded from ruling in favor of the non-petitioning party if that party provides sufficient notice of his or her competing claims. The court of appeals noted that “Father gave [Mother] sufficient notice of his request to award sole legal decision-making to him in the motion for temporary orders and his pretrial statement.”  

The opinion highlights the importance of properly evaluating the merits of a modification request before initiating a Rule 91 proceeding. It also serves as a reminder that the benefit of experienced and prepared attorneys is indispensable to avoid pitfalls in any family law action. The attorneys at Jaburg Wilk are available to explore your options, and help you navigate complex dissolution and post-decree issues.  

About the author:  Natalya Ter-Grigoryan is a family law attorney at the Phoenix law firm of Jaburg Wilk.  

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