Trigger warning: this case involves allegations of child abuse
During the parties’ marriage, the children reported physical abuse perpetrated by their Father. After one incident, Mother took the children to the hospital for evaluation and treatment. The children told hospital staff that Father had hurt them. As mandatory reporters, the hospital staff contacted law enforcement. When law enforcement interviewed Mother, she reported a history of abuse that she was afraid to report previously. After this incident, Mother relocated with the children to Idaho. Shortly thereafter, Father also relocated to Idaho.
For the next few months, the oldest two children attended counseling intended to address the trauma from “abuse and violence” according to their social worker. During that time, Father relocated back to Arizona. Within a couple of months, Mother and the children relocated back to Arizona, too.
Issues between the parents continued and Mother obtained an order of protection that listed the children as protected individuals, effectively prohibiting Father from seeing them.
Father filed for divorce and requested what was then known as joint custody of the children. Mother responded and asked the family court to supervise Father’s parenting time based on the history of domestic violence and child abuse. The family court entered temporary orders that gave Father supervised parenting time three times per week.
The parties and the children were interviewed by Conciliation Services. Mother and Father could not agree on parenting time. Father sought equal parenting time and Mother sought to limit his parenting time to every other weekend during school years and equal time during the summers. The Conciliator’s report recommended nearly equal parenting time.
During the divorce, Mother lost her job and was forced to move with the children into a family shelter. She filed a petition to relocate with the children to Wisconsin where she could be closer to her extended family.
After a trial, the family court awarded sole legal custody to Mother and granted her petition to relocate to Wisconsin. The court found “that there was a significant history of domestic violence” perpetrated by Father against Mother and that the children had been present when it occurred. Nevertheless, the court awarded unsupervised parenting time for Father pursuant to a long-distance parenting plan.
Father appealed.
On appeal, Father argued the court did not make specific findings to support why the decision to grant sole custody and relocate the children were in their best interests. Mother argued that the court’s finding of Father’s significant history of domestic violence was sufficient to award her sole custody and relocate the children.
Domestic violence and legal decision-making
In contested cases involving legal decision-making and/or parenting time, Arizona family courts must consider several statutory factors under A.R.S. § 25-403(A). These factors are often referred to as the best interest factors. The other subsection of that statute requires family courts to “make specific findings on the record about all relevant factors and the reasons for which the decision is in the best interests of the child.”
But this is not the only statute that impacts legal decision-making and parenting time determinations. Under A.R.S. § 25-403.03, family courts cannot award joint legal decision-making if there is a finding of “significant domestic violence” or “a significant history of domestic violence.” Those two disqualifying criteria sound very similar but “significant domestic violence” can refer to a single incident of domestic violence that the family court deems sufficiently severe. A “significant history of domestic violence” refers to a pattern of domestic violence, potentially even consisting of comparatively “minor” transgressions. It is always a little uncomfortable to explain this distinction because no domestic violence is “insignificant,” but we as family lawyers are bound to the language the legislatures use.
Sometimes confusingly, that statute also says that if there is any domestic violence committed by one parent against the other, there is a rebuttable presumption against joint legal decision-making. This means that if there is domestic violence that the family court does not characterize as “significant’ or a “significant history,” it still can result in an award of sole legal decision-making to the victim parent if the presumption is not rebutted.
Back to the facts of this case, the Court of Appeals rejected Father’s argument that the family court wrongfully extrapolated “one incident” into a “significant history.” The family court record contained evidence sufficient for the court to find that it was not just a single incident and, instead, that there was a history of domestic violence sufficient to support the family court’s award of sole legal decision-making.
Additional statutory factors when a parent wants to relocate with children
Next, Father argued that the family court’s analysis of the relocation wrongfully focused on the benefits to Mother and not the best interests of the children.
In cases where a parent wants to relocate with children, there are additional statutory factors family courts must consider under A.R.S. § 25-408. Family courts are required to make specific findings about these factors as well.
The family court’s order granting relocation seemingly referred to some of the factors and reasoned that they favored Mother, but other factors were left unaddressed. The Court of Appeals noted from this that while evidence existed to support the relocation, there also was evidence that weighed against it. For this reason, it vacated the relocation order and directed the family court matter to make specific findings pursuant to A.R.S. § 25-408.
Conclusion
Relocations involve another set of statutory factors and a predisposition against relocation that the parent who wishes to relocate must overcome. These additional considerations make relocations more complicated than ordinary child custody cases and emphasize the impact an experienced child custody lawyer can make.