Court of appeals overturns custody resolution which “relies on [a] Decades-old allegations of sexual assault”

From Young v. Benoit, ruled yesterday by the Arizona Court of Appeals, in an Opinion by Presiding Judge David D. Weinzweig, joined by Judges Brian Y. Furuya and Judge Jennifer M. Perkins:

Mom and Dad dated for several months in 2010 and 2011. They had sex, often unprotected, and Mother became pregnant. Their relationship ended before child Jack was born in October 2011. Two months later, father applied to family court for a determination of paternity, custody, parental leave and child support….

Mom and Dad solved all the problems [in 2012] under a “joint custody agreement and parenting plan.” Both parents were represented by legal counsel and both signed the agreement. In the relevant part, the agreement provided that “[t]The parties have considered the best interests of the minor child pursuant to ARS § 25-403,” “[n]either parent is influenced by coercion or coercion into entering into this agreement”, “FATHER and MOTHER may maintain an ongoing commitment to the child” and “[t]there has been no significant domestic violence here that would preclude joint custody in this matter.”

The court [gave the parties joint legal custody but] … Award[ed] Mother final decision-making authority in important decisions and awards[ed] Paternal leave every other weekend…. The court also found that the mother and father had “mutually agreed to proceed amicably” that “no coercion or coercion [was] involved in the negotiations” and that “each party understands[ood] that they waive their right to a trial by virtue of this agreement.” Neither father nor mother appealed the 2012 decree….

Almost two and a half years later, the mother petitioned to amend the 2012 ordinance, demanding sole legal decision-making and oversight of the father’s parental leave. [The court … denied Mother’s petition to modify but granted Father’s request for joint legal decision-making and equal parenting time (“2016 Decree”).] …

About three years later, in November 2019, Mother petitioned family court to amend the 2016 ordinance. This time, she sought an injunction granting her sole jurisdiction and suspending Father’s maternity leave.

The mother’s petition focused on one month, November 2019, and claimed a number of “significant and ongoing changes in circumstances,” including the father pressing on Jack’s abdomen after appendectomy, forcing Jack to exercise and giving him no painkillers gave. According to the petition, Jack told mom dad punched and kicked him, called him names like “stupid face,” didn’t feed him, and let him sleep in the bathroom. The mother’s petition alleges no past or present sexual abuse….

The family court ordered [an] Counselor and Licensed Social Worker…to investigate the claims and report their findings. The…counselor reviewed many documents and interviewed both parents, eight year old Jack, his therapist and mother’s therapist. The … counselor later released a written report in January 2021 recommending that the mother’s petition be dismissed. The … counselor concluded that “there is insufficient information to determine that the father was abusive or neglectful [Jack] or that his parental leave should be curtailed.”

When mother was interviewed by the counselor in 2020, she claimed to have been sexually abused by father in 2010 and father responded to the allegation. Corresponding [the] Advisor’s report:

The mother claimed that the father sexually abused her, which led to the conception of the child. Father explained that he was taking diazepam for anxiety and that it was affecting his sexual performance. When they had sex, Mom complained of back pain, but Dad was on the verge of orgasm and didn’t stop right away. Mother pushed father away. He noted that they had sex several times after that.

The … counselor added that mom had reported dad to law enforcement over alleged sexual abuse of Jack in 2015 before moving to the amendment for the first time. However, after an investigation, the Police Department and Department of Child Safety determined that the allegations were unfounded. Jack also accused dad of aggravated abuse and neglect in 2019 before mom moved on to the Second Amendment. But again, the police and DCS investigated and found that the claims were unfounded. In fact, the DCS investigator said, “There was no evidence of abuse and neglect,” and Jack’s “disclosures did not appear credible.” …

The court conducted a hearing of evidence and heard testimonies from the mother, maternal grandmother and the… counselor. Father represented himself. When the … Counselor took the stand, the court asked her a series of questions about “a problem that has been bothering me since I reviewed your report,” leading to the following exchange:

Court: You would agree with me that it is correct that even before she made her current application, mother claimed that the child in this case was conceived through sexual assault, right?

Witness: Right.

Court: Would you agree with that in your interview with father, father – although you don’t use those words, essentially admitting sexual assault?

Witness: Yes.

Father then attempted to question the … counselor, but the court warned him of the “potential criminal penalties” of his statements, which “can be used against [him] in court in a criminal prosecution.” After this warning, father stopped questioning and sat down.

In March 2021, the court granted the mother’s application and more…. The court granted the mother sole legal decision-making authority and ended the father’s parental leave. It was noted that “there is a substantial and ongoing change because Father has admitted it [… advisor] that he has sexually assaulted mother and the child is afraid to spend time with father unsupervised.

Among the best interest factors, the court emphasized that “father was sexually assaulted [Mother] while [their] relationship [in 2010]”, which “father admitted.” The court described the incident as follows:

Mother had told [Father] to quit and that she was in pain during a consensual sexual encounter. The father further stated that despite withdrawing the mother’s consent, he intentionally did not stop the activity because he was on the verge of orgasm. In fact, Mother credibly reported, it was this non-consensual sexual act that led to the conception of the child.

Based on this incident, the court ruled that father should not have parental leave, emphasizing:

No woman should be forced or directed to maintain a relationship with her sexual abuser. Also, it is against the child’s best interests to have a relationship with his mother’s sex offender. This, together with the father’s emotional and physical abuse of the child, justifies the termination of the father’s parental leave with the child.

The court also accepted Jack’s testimony that father had tortured him and “he doesn’t feel safe around father”. Based on the same evidence, the court also found that father was “involved in acts of domestic violence against mother and child,” leading to the presumption that it was not in Jack’s best interest for father to have sole or joint decision-making authority and concluded that Father did not rebut the presumption. The court also increased the father’s child support payments, finding he owed over $6,000 in overdue child support payments….

The Court of Appeals reversed:

Arizona courts use a two-stage investigation to determine whether a custody order should be amended. The court must first “determine whether there has been a change in circumstances that significantly affects the child’s well-being”. {This point is rooted in the principle of res judicata, and parents requesting an amendment must demonstrate “that the amendment justifies a departure from the principles of res judicata underlying the order in force.”} If the court finds a change in circumstances If it determines that it will do so, then decide whether the proposed change would be in the best interests of the child. In the absence of evidence to the contrary, we believe that “sufficient, frequent, meaningful, and continuous parental leave with both parents” is in a child’s best interest….

As the first “significant and enduring change,” the court found that “father admitted [… advisor] that he sexually assaulted Mother.” That was a mistake for two reasons.

First, the alleged assault happened in early 2011 — almost two years before mother agreed to shared custody under the 2012 decree, five years before the 2016 decree, and ten years before the 2021 decree. Our Supreme Court has warned that the “Power to change [a custody] Decree may be exercised only if good cause is established” and such “reasons shall constitute facts or circumstances unknown at the time of the original decree or occurring after the decree.” …

Second, in doing so, mother waived her right to switch custody based on the earlier 2010 incident. Mother had every opportunity to present evidence and arguments for father’s alleged abuse in 2012, but she made an agreement to share joint custody with father after Jack’s birth. The court then issued the 2012 Joint Custody Decree, finding that it was in Jack’s best interest that the parents “have joint custody.” The 2012 decree also confirmed that mother and father “testif[ied] that they understand this agreement and believe that it is in the best interests of the minor children at this time that no one has threatened, promised or coerced them in any way to get them to reach the agreement and that the terms are fair and just.” Neither the father nor the mother appealed the 2012 decree. The family court erroneously found a change in circumstances based on the decades-old allegation of sexual assault….

The second reason the court found “a substantial and ongoing change” was Jack’s fear of “spending.”[ing] unsupervised time with father.” That too was a mistake.

A child must be “reasonably old and mature” for the court to consider the “desires of the child”. [over] legal decision-making and parental leave.” … [T]The record reflects:

• Jack’s therapist described Jack as “oppositional and manipulative” and “in a bond of loyalty between his parents”.
• Jack often struggled to separate reality from fiction,” he says[ing] visual and auditory hallucinations,” and was deemed unbelievable by a DCS investigator who saw no reason to separate Jack from his father.
• Jack accused father of aggravated abuse and neglect in 2019, but police and DCS concluded the investigation was baseless, noting that father “was truthful in denying abuse and neglect” and found “no evidence of abuse or neglect.” “.
• Jack was eight years old when he shared his desires.

It was a mistake for the family court to treat Jack’s wishes as a change of circumstances. As a result, we don’t have to reach the best point of interest for the change.