The parties who were unmarried shared one minor child in common. Before legal decision-making and parenting time were established, the parties followed an informal parenting schedule.
During one exchange, an incident occurred that caused Father to be arrested for domestic violence. After that incident, Mother obtained an order of protection against Father. It listed Mother and the parties’ child as protected individuals.
Father requested an evidentiary hearing and the court removed the child from the protective order but affirmed the order as it pertained to Mother. The court issued its modified protective order using boilerplate forms required in all protective order cases. After the hearing, the court distributed its Minute Entry where it stated its finding that, “there is reasonable cause to believe that [Father] has committed an act of domestic violence within the last year.”
Before Father contested the order of protection, he initiated a separate family court action to establish legal decision-making and parenting time. Father requested equal parenting time and joint legal decision-making authority.
The parties could not reach agreements on legal decision-making or parenting time and the custody case proceeded to another evidentiary hearing that was scheduled the day after the order of protection hearing.
Full disclosure:
We are especially close to this case because we represented Mother in this matter.
At the legal decision-making and parenting time trial, we asked the family court to take judicial notice of the protective order. Judicial notice is a procedural tool to ask a Court to adopt or accept certain information without formal presentation of evidence. In this case, we wanted the family court to accept the order of protection as proof that Father committed act(s) of domestic violence against Mother so that we didn’t have to re-litigate it in the family court case. The family court judge agreed to take judicial notice of the protective order.
The reason this mattered is because the existence of domestic violence between parents invokes statutory presumptions against joint legal decision-making and parenting time pursuant to A.R.S. § 25-403.03.
A few weeks later, the family court issued its ruling. It found that Mother failed to prove domestic violence sufficient to invoke the statutory presumption against joint legal decision-making. The family court ordered joint legal decision-making and equal parenting time.
We filed a motion to amend the ruling under Rule 83 to ask the family court to change its ruling and argued that the doctrine of issue preclusion, also known as collateral estoppel, essentially required the family court to adopt the protective order court’s finding that domestic violence occurred.
Unfortunately, the judge denied our motion, so we had to file an appeal.
The appeal and the doctrine of issue preclusion
Issue preclusion is a legal theory intended to prevent litigants from re-litigating an issue of fact decided in previous proceedings involving the same parties. More specifically, it prevents re-litigation when: (1) an issue was actually litigated in a previous proceeding; (2) the parties had a full and fair opportunity to litigate that issue; (3) the issue’s resolution was essential to the previous proceeding; (4) the court entered a valid and final decision on the merits; and (5) there is a common identity of the parties in the two proceedings.
Basically, this means that when the same two parties previously litigated a specific issue and a court decided the issue on its merits (i.e. did not dismiss the case without prejudice), that court’s decision can apply in subsequent proceedings. This is a bit of an oversimplification and there are exceptions, so if you have any questions about the applicability of issue preclusion in your case, you should consult with experienced counsel.
The Court of Appeals agreed that our case met all of the criteria and that issue preclusion applied. This means that the family court should have applied the statutory presumptions against joint legal decision-making and parenting time. So the Court of Appeals vacated the family court’s legal decision-making and parenting time orders.