In a custody dispute between parents in an Arizona proceeding, if a parent has committed an act of “domestic violence” their right to have equal decision-making authority and unsupervised, or any, parenting time is at risk. Arizona laws direct that when determining legal decision-making authority, previously known as custody, and parenting time, more commonly known as visitation, the Arizona superior court judge must consider “best-interest” factors including “whether there has been domestic violence or child abuse.” If the court finds domestic violence has occurred, it must determine whether the conduct constituted either “significant domestic violence pursuant to ARS § 13-3601,” or based on stands established in an Arizona case DeLuna v. Petitto, that there has been “a significant history of domestic violence.” If the Court makes either of these findings of significant domestic violence, the offending parent “shall not be awarded” joint legal decision-making authority.
There are numerous acts that can constitute “domestic violence.” These range from threatening or intimidating to murder. And, under certain circumstances, disclosing nude pictures of another person can be considered as domestic violence. There are many other acts that are defined as “domestic violence” in the Arizona statutes.
“Significant domestic violence” or a “significant history of domestic violence” is not defined in our statutes, leaving the superior court with “discretion to weigh the evidence and determine the degree of the domestic violence’s ‘significance’ in connection with the case. The superior court may consider the following three factors in reaching its ‘significance’ determination:
- The seriousness of the particular incident of domestic violence,
- The frequency or pervasiveness of the domestic violence,
- and the passage of time and its impact.”
It is important to note that the factors in this three-part test, which has circulated in the superior court, “seem reasonable” but are not contained in any Arizona law, family court rule, or published Arizona opinions. It is left to the court’s discretion.
If the superior court finds a parent has committed an act of domestic violence, the law imposes a rebuttable presumption that an award of either sole or joint legal decision-making authority to that parent would not be in the child’s best interests. The rebuttable factors include:
- If the offending parent has demonstrated an award of parenting time and legal decision-making authority is in the child’s best interests;
- If the offending parent completed a batter’s prevention program;
- If appropriate, the offending parent’s completion of substance abuse program;
- If appropriate, the offending parent’s completion of parenting class;
- If offending parent is on probation, parole, or community supervision, if they are also restrained by a contested protective order;
- If offending parent committed further acts of domestic violence.
However, no factor alone is dispositive. A landmark Arizona ruling, Pollock v. Pollock, explained best interest factors are “weighed collectively,” and “no single factor is controlling.” Moreover, the court is required to explicitly determine if the offending parent affirmatively demonstrated that “parenting time will not endanger the child or significantly impair the child’s emotional development.” If the offending parent meets the burden “to the court’s satisfaction, the court shall place conditions on parenting time that best protect the child and the other parent from further harm.” These protective conditions can vary widely and could include supervised parenting time, participation in therapeutic intervention, drug and alcohol screening, and “any other condition that the court determines is necessary to protect the child, the other parent and any other family or household member.”
Judges take their obligation to protect parents and children from suffering harm or being exposed to risks by perpetrators of domestic violence seriously. Any parent accused of such an act faces an uphill battle. They need to recognize the gravity of the allegation and should quickly seek professional guidance to preserve his or her parental rights.
Pollock v. Pollock, 181 Ariz. 275, 278 (App. 1995)
A.R.S. § 25-403.03(F)(1)-(9). ” Engstrom v. McCarthy, 243 Ariz. 469, 474, ¶18 (App. 2018).