If a parent committed an act of “domestic violence” in a parent custody battle in an Arizona proceeding, their right to equal decision-making authority and unsupervised parental leave, or no parental leave at all, is at risk. Arizona law requires that in determining discretionary authority, formerly known as custody, and parental leave, more commonly known as visitation, the Arizona Superior Court judge must consider “best interest” factors, including “whether there is domestic violence or a child”. Abuse.” If the court finds that domestic violence occurred, it must determine whether the conduct constitutes either “substantial domestic violence under ARS § 13-3601” or based on findings in an Arizona case of DeLuna v. Petitto that “a significant history of domestic violence.” If the court makes any of these significant domestic violence determinations, the offending parent is “not accorded joint judicial decision-making authority.”
There are numerous acts that may constitute “domestic violence”. These range from threats or intimidation to murder. And in certain circumstances, disclosing another person’s nude image may constitute domestic violence. There are many other acts that are defined as “domestic violence” under Arizona law.
“Significant domestic violence” or a “significant history of domestic violence” is not defined in our statutes, leaving it up to the higher court to “consider the evidence and determine the degree of “substantiality” of domestic violence in the context of the case. The higher court may consider the following three factors in arriving at its determination of “relevance”:
- the severity of the specific incident of domestic violence,
- The frequency or prevalence of domestic violence,
- and the passage of time and its effects.”
It is important to note that the factors in this three-part test circulated in the Supreme Court “appear reasonable” but are not contained in any Arizona statute, family court rule, or published Arizona opinion. It is left to the discretion of the court.
If the higher court finds that a parent has committed domestic violence, the law establishes a rebuttable presumption that conferring sole or joint judicial decision-making authority on that parent would not be in the best interests of the child. Rebuttable factors include:
- When the offending parent has established parental leave and the court’s decision-making authority is in the best interests of the child;
- If the offending parent completed a Batter’s Prevention Program;
- The offending parent’s completion of the substance abuse program, if applicable;
- If applicable, completion of parenting instruction by the offending parent;
- If the offending parent is on probation, probation, or community custody if also restrained by a contested protection order;
- If the offending parent has committed other acts of domestic violence.
However, no factor alone is dispositive. A landmark Arizona ruling, Pollock v. Pollock, stated that factors in the best interest are “considered to be weighed together” and “no single factor prevails.” In addition, the court must expressly determine whether the offending parent has established affirmatively that “parental leave does not endanger the child or significantly affect the child’s emotional development”. If the offending parent discharges the burden “to the satisfaction of the court,” the court establishes parenting conditions that best protect the child and the other parent from further harm. These protective conditions can vary widely and could include supervised parental leave, participation in therapeutic interventions, drug and alcohol testing, and “any other condition the court deems necessary to protect the child, the other parent, and other family or household members.” ”
Judges take seriously their duty to protect parents and children from harm or harm from perpetrators of domestic violence. Any parent accused of such an act faces an uphill battle. They must recognize the seriousness of the allegation and should seek professional advice quickly to protect their parental rights.
ARS § 25-403,
ARS § 25-403.03(A).
ID. 424, ¶15, n.6
ARS § 25-403.03(D)
ARS § 25-403.03(E)
Pollock vs. Pollock, 181 Ariz. 275, 278 (App. 1995)
ARS § 25-403.03(F)(1)-(9). ” Engstrom v. McCarthy, 243 Ariz. 469, 474, ¶18 (App. 2018).