Benavidez Law Blog

Chris Wencker argues at Court of Appeals

Last week, the firm's attorney Chris Wencker argued at the Arizona Court of Appeals, Division 1, in Phoenix. Chris was arguing in support of the brief the firm filed on behalf of Animal Defense League of Arizona in the case Kaufman v. Langhofer. You can hear Chris's arguments online at http://www.cofad1.state.az.us/oa/CR1-10-28-09_CV080655.mp3. His arguments begin at 14:06 into the file.

An Introduction to Adoption

Preadoption Certification

    Arizona law requires all prospective adoptive parents to complete a preadoption certification process before they will be allowed to adopt a child.  The application must be made directly by the prospective adoptive parents to Pima County Juvenile Court.  The adoptive parent is required to provide a great deal of information as part of the preadoptive certification process, including information demonstrating financial stability, a statement as to the adoptive parents' health from a doctor or registered nurse, fingerprint clearance cards, and criminal background.  The investigator will conduct an extensive inquiry into the background and living environment of the prospective adoptive parents.  The investigator must make findings of all relevant and material facts that pertain to the adoptive parent's ability to adopt children.  The findings must at a minimum include a complete social history, the financial condition of the adoptive parent, the moral fitness of the adoptive parent, the religious background of the adoptive parent, the physical and mental health of the adoptive parent, any past history of child abuse, child abandonment, dependency, or termination of the parent/child relationship, and any other relevant facts.

    Once the prospective adoptive parent has submitted the application for the preadoption certification, Pima County Juvenile Court has ninety days to complete the investigation into the adoptive parent's background.  Once the investigation is complete, the investigator will submit a written report and recommendation to Pima County Juvenile Court as to whether the prospective adoptive parent is fit to adopt a child.  The Court then has sixty days to enter an Order certifying the prospective adoptive parent to adopt a child, or the Court may deny the application.  If the application is denied, the prospective adoptive parent cannot apply for preadoption certification again for at least one year.  If the application is accepted, it remains valid for eighteen months.  The Court also may request additional information before making a decision.

    These requirements do not apply if the prospective adoptive parent has adopted within the past three years, or if the prospective adoptive parent is a certified foster parent.  There are also some exceptions for spouses of biological parents. 

Consent to Adopt

    The consent of several persons is required under Arizona law before a voluntary adoption can take place.  The biological mother must consent to the placement of the child and the adoption unless her parental rights have not previously been terminated.  Consent from the father is required if the father was married to the biological mother at the time of conception or during the pregnancy, if the father has adopted the child, or if paternity has been formally established.  The child's consent is required if the child is twelve or older.  If the child has a court-appointed guardian with the power to consent to an adoption, the guardian also must formally consent before the adoption can take place.  Similarly, if the child is in the care of the state, the state must also consent to the adoption.

    A consent to adoption or placement of the child with prospective adoptive parents must be in writing, and it is irrevocable unless the consent is the product of duress, fraud, or undue influence.  At the same time that the consent to adopt is obtained, the parent must also execute a notarized statement either granting or withholding permission for the child to obtain information about the biological parent after the child has reached the age of majority.  The biological parents are able to file a new notarized statement withholding or granting this permission to the child after the adoption is completed.  If multiple notices are filed, the most recent one will control whether or not the child can access that information.  The biological mother must also execute a notarized statement identifying all putative fathers of the child.  Any putative fathers must be given notice of the adoption proceedings and have the opportunity to contest the adoption. 

Petition for Custody of the Child

    If a prospective adoptive parent has physical custody of a child but has not completed the preadoption certification requirements to adopt that child, the prospective adoptive parent must file a Petition for Custody with Pima County Juvenile Court requesting an Order that allows the adoptive parent to retain custody of the child pending the results of the preadoption certificate.  The Petition must be filed within five business days after the prospective adoptive parent obtains custody of the child, and the Court must hold a hearing on the custody of the child within ten business days of receipt of the Petition.  At the hearing, the prospective adoptive parent must show that it is in the child's best interests for the child to retain custody.  The Court can determine that the child should remain with the prospective adoptive parent, or the Court can determine that it is in the child's best interests to live with another adult and require the prospective adoptive parent to relinquish custody.  If the child continues to be placed with the prospective adoptive parent, the Court will order that the preadoption certification procedure continue.  If the prospective adoptive parent has not begun the preadoption certification procedure prior to the hearing on custody, the Court will enter an order requiring the adoptive parents to submit their application for predoptive certification within thirty days of the hearing on custody.

    A hearing on the custody of the child is not necessary if the prospective adoptive parent is married to a birth parent of the child, an aunt, uncle, adult sibling, grandparent, or great-grandparent of the child (by whole blood, half blood, or marriage), if the prospective adoptive parent has successfully completed the preadoption certification process, if the custodian is a state-approved agency, or if the custodian of the child is a licensed foster home.

Petition to Adopt

    Once the prospective adoptive parent has successfully completed the preadoption certification process, the adoptive parent can file a Petition to Adopt.  A Petition to Adopt must contain the following information: the full name, age, and residence of the adoptive parents; if married, the date and place of marriage of the adoptive parents; the adoptive parents' relationship to the child (if any); that a certificate of acceptability to adopt has been issued to the parents, or, if appropriate, the reason why preadoption certification was not required; the date when the prospective adoptive parents obtained custody of the child and who the prospective adoptive parents obtained custody from; an explanation of the current custodial arrangements if the child is not in the custody of the adoptive parents; the date and place of birth of the child; the name of the child and the name the adoptive parents want to name the child, if different from the original name; the the prospective adoptive parents wish to adopt the child; a complete statement of all property owned or possessed by the child; written consent to the adoption from the parents or Child Protective Services; and full disclosure of any fees or services paid for by the prospective adoptive parents to an individual or organization in connection with the adoption. 

    The Court will then issue a Notice of Hearing on the Petition to Adopt to any interested party who has not provided written consent to the adoption.  If all interested parties have consented to the adoption in writing or consent at the hearing, then the Court will approve the adoption of the child if a preponderance of the evidence supports that adoption is in the best interests of the child. 

What's in a Name?

     What is in a name?  Every once in a while parents argue about what the surname of their child ought to be in family law proceedings.  This most frequently occurs in paternity cases where the parents were never married and have a dispute as to which surname their child should have.  The question of surnames is also increasingly at issue in divorce cases as many women now elect not to change their names upon marriage and wish for their maiden names to be incorporated into the names of their children.

    Arizona statutes have yet to address the matter, but two Arizona cases have examined when it is appropriate to modify a child's surname.  The first case was Laks v. Laks (540 P.2d 1277) and was decided by the Division Two of the Arizona Court of Appeals in 1975.  In this case, the mother unilaterally modified the children's names from their father's surname to hyphenating mother's maiden name with father's surname.  Mother argued that she had an absolute right to give the children her name and that not allowing her to do so would violate the Equal Protection Clause of the Fourteen Amendment.  She further argued that the father should have to show that changing the names of the children was not in the best interests of the children in order to prevail.

    The Court found that the father had a protectible interest in having his children bear his name that has historically been recognized by the courts, but that there was merit in mother's equal protection argument.  However, the Court felt that mother's argument would be more persuasive if the parties were arguing about the initial naming of their children, rather than modifying the names of teenage children.  The Court feels that a best interests of the children standard is more appropriate to determine whether the names of the children should be changed since the parties were arguing about a modification of the name change rather than the initial name of the children.

    The Laks court articulated some factors that must be considered in a best interests of the children analysis, including the preference of the children, the desire of the father to give his name to the children, knowledge of parentage, and the inconvenience or embarrassment experienced by a child in retaining or accepting a name.

    Division One of the Arizona Court of Appeals revisited the issue of surnames in Pizzocini v. Yarborough, 177 Ariz. 422 (1993).  This case was a paternity action where father requested that his child's name be changed from the step-father's surname to the father's surname.  The trial court ruled that the child's name should not be modified because the child shared the surname with his mother and half-sibling.

    The Court notes that while children born to married parents generally bear the father's name, children born out of wedlock more frequently bear the name of the mother, as the name of the father can only be placed on the birth certificate with the consent of the father when the parents are not married.  The Court does not think that tradition is an appropriate means to determine the name of the child, and instead turns to the best interests of the children standard just as the Laks court did.

    The Court articulated several factors that should be considered in determining whether a name change for a child is appropriate, including the preferences of the child, the length of time the child has had the current name, preferences of the parents and the reasons for those preferences, the possibility that the use of the name could cause insecurity, loss of identity, or embarrassment or confusion for the child, and the effect of the name change on the child's relationship with either parent. Pizziconi v. Yarborough, 177 Ariz. 422, 425 (1993).  The Court also states "court should not give greater weight to the father's interest in having the child bear the paternal surname because [...] such a standard is also inappropriate since the tradition of children bearing the father's name has eroded as women have, with increasing frequency, opted to retain their birth names after marriage or to select a surname other than the husband's" Id.

    Therefore, if a parent wishes to change the name of a child as part of a family law proceeding, that parent must be prepared to demonstrate that a name change is in the best interests of the child.

Recent Family Law Appellate Court Decisions

    The Arizona Courts of Appeals have published several opinions on family law cases since January 2009.  A summary of those decisions follows.

Kline v. Kline, A CA-CV 08-0050, Arizona Court of Appeals (Division One) 

   This case addressed whether an award of spousal maintenance obtained as part of a default judgment is valid under Rule 44(G) of the Arizona Rules of Family Law Procedure when the demand for maintenance was contained in an Amended Petition for Dissolution that was never formally served. 

    The facts are as follows: The wife filed for divorce in October 2005, and her Petition for Dissolution of Marriage was personally served on the husband.  The Petition did not include a request for spousal maintenance.  However, a week later the wife filed an Amended Petition for Dissolution that added a specific demand for spousal maintenance.  The Amended Petition was mailed to husband's former attorney, but there was no evidence that formal service was ever accomplished.

    Husband entered a special appearance to contest the jurisdiction of the Arizona court.  The court found that it did have jurisdiction to proceed with the matter.  Thereafter, wife filed a Petition for Temporary Orders.  Husband's attorney made certain comments during the Temporary Orders hearing demonstrating that husband was aware that wife had requested spousal maintenance in the Amended Petition for Dissolution.  Wife was awarded $5,000.00 per month in temporary spousal maintenance. 

    Husband never filed a Response to the Amended Petition for Dissolution, so the wife eventually moved to finalize the matter and obtained a default Decree of Dissolution of Marriage that included an order for husband to continue paying spousal maintenance in the amount of $5,000.00 per month for five years.

    Husband appealed on the grounds that the judgment for spousal maintenance was improper because husband never was served with wife's Amended Petition for Dissolution and did not have formal notice of the request for maintenance.

    The court held that an award of spousal maintenance based on a Petition for Dissolution that is not properly served is not valid, unless the lack of proper service could not cause prejudice to the defaulting party.  In this case, the husband was not prejudiced, because comments made by his attorney at the Temporary Orders hearing demonstrated that husband was aware that a request for maintenance had been made.  Therefore, the default judgment for spousal maintenance was affirmed.

Jordan v. Rea, Division One of the Arizona Court of Appeals, 1 CA-SA 09-0007

    In this decision, the court considered (1) What standard must be applied when divorced parents who share joint legal custody their child cannot agree on what school the child should attend; (2) whether a child can be precluded from attending a religious school only because a parent objects on religious grounds, and (3) can a parent be ordered to pay tuition for a private religious school as part of that parent's support obligation?

    The facts are as follows: the parents divorced in 2005 and were awarded joint legal custody of their two children.  Both children attended a private religious school - the eldest child began attending before her parents were divorced.  The father was also ordered to pay child support to mother.  About eight months after the divorce was finalized, father filed a petition to modify his support obligation.  He asserted that he could not afford to continue paying for private tuition.  Mother argued that the parents had agreed their children would attend the private school and that tuition should be included as part of child support.  The court ordered that father should continue paying the private tuition as part of the child support obligation because it was the parties' custom for the children to attend the private school, and neither parent had requested an order modifying where the children would attend school.

    Thereafter, father filed a Petition to Enforce the Parenting Plan and argued that the court's Order with respect to child support violated father's constitutional rights and violated the parenting plan.  Judge John Rea reduced father's child support obligation and issued an Order requiring mother to enroll the children in a different school after the end of the current semester.  The judge reasoned that the parents shared joint legal custody, and thus each had the authority to make religious decisions for the children when the children were in the care of the respective parents.  The judge believed that school was a "religiously-neutral" time period when neither parent has the authority to require the children to receive religious training over the objection of the other parent.  Mother filed a special action challenging this decision, and Division One of the Arizona Court of Appeals accepted jurisdiction.

    The Court held that the court must apply the best-interests of the child as the standard for reaching a decision when parents who share joint legal custody cannot agree on educational decisions.  The Court was troubled because the Superior Court effectively vetoed mother's educational preference in its decision and eliminated the option of the religious school rather than treating it in a neutral manner and comparing that school with other educational options.  The Court also noted that the parties' parenting plan was akin to a contractual agreement, and neither parent bargained for or received the ability to unilaterally determine that the children would not attend a school based on religious preferences.  The Court determined that the Superior Court's holding that any objection made by a parent on religious grounds to a school would be sustained as a matter of law was a legal error.

    Instead of focusing on the objection of one parent, the Appellate Court held that courts must resolve educational disputes in accordance with the best interests of the children.  The religious preference or objection of one parent is only one of a myriad of factors that must be considered to determine the best interests of the child.  This protects both parents' constitutional rights to determine the upbringing of their child.  Therefore, a religious objection to a school is not a sufficient basis in and of itself to determine that the child should not attend the school, and a decision allowing a child to attend such a school over the objection of a parent does not violate that parent's Fourteenth Amendment rights.

    The Court of Appeals also determined that it was permissible to include the private tuition expense in the Child Support Order, even if the parents did not agree that the tuition expense should be included.  Father objected on the grounds that he was being required to subsidize a religious institution if tuition were to be included in the Child Support Order; however, the Court distinguished between requiring support of a religion and requiring a parent to make a child support payment that includes education expenses when the Court previously determined that attending the school is in the best interests of the children.  The purpose of child support is to provide financially for a child, not to provide for a religious institution, and as such inclusion of the private school tuition in the child support calculation does not implicate the parent's First Amendment rights. 

Egan v. Fridlund-Horne (Hochmuth), 2009 Ariz. App. LEXIS 56 (Ariz. Court of Appeals, Division One)

    The facts of this case are that same-sex partners Egan and Hochmuth agreed to have a child.  Egan became pregnant with the assistance of a sperm donor, and the parties and the child lived together as a family for seven years.  After that time, the parties separated, but continued to share equal parenting time with the child.  However, Egan gradually moved to limit Hochmuth's visitation.  Hochmuth filed suit to establish in loco parentis rights toward the child.  The Superior Court awarded Egan legal custody of the child, and ordered the parties to share substantively equal parenting time.  Egan filed a special action and requested a stay of the Order.  The Appellate Court granted the stay and accepted jurisdiction.

    The parties agreed that Hochmuth stands in loco parentis to the child.  However, Egan argued that a person standing in loco parentis must demonstrate that the natural parent is denying all visitation before the non-parent can seek rights under A.R.S. 25-415(C).  Since Egan was allowing Hochmuth some time with the child, Egan asserted that Hochmuth's petition should have been dismissed.  The Court noted that it was previously held that "a parent's willingness to allow some visitation is but one factor to consider under 25-409" McGovern v. McGovern, 201 Ariz. 172, 179 (App. 2001).  The Court therefore concluded that Hochmuth did not have to show a complete denial of visitation prior to seeking visitation rights.

    Egan then argued that the superior court abused its discretion by not giving adequate consideration to Egan's decision as the natural parent to limit the child's visitation with Hochmuth.  Egan further argued that since Hochmuth had not alleged that Egan is an unfit mother, Egan's decision with respect to parenting time should be presumed as reasonable and in the best interests of the child.  Hochmuth argued that Egan is a fit parent, but that Hochmuth rebutted the presumptions about the best interests of the child and reasonableness of Egan's decisions by demonstrating that Egan consented to and fostered the parental relationship between Hochmuth and the child.  Hochmuth also argued that grandparent rights precedent should not be applied to this case, because of the extensive involvement Hochmuth had with Egan and the child.

    The Court addressed these arguments by first outlining Egan's constitutionally protected right to parent her child, and the limitations that may be placed on this right.  One such limitation that may be ordered is allowing a child to have visitation with a person absent the approval of the parent.  However, certain due process protections must be implemented to protect the parent's constitutional rights when such a visitation order is considered.  At a minimum, the competent parent's wishes regarding visitation must be accorded "special weight" by the superior court.  McGovern, 201 Ariz. at 177; Jackson v.Tangreen,199 Ariz. 306, 310 (App. 2000); Graville v. Dodge, 195 Ariz. 119, 125 (App. 1999).  The Court also identified other protections in the Arizona grandparent visitation statute, including that "it is framed in permissive terms; the right to visitation arises only if the trial court finds it is in the best interests of the child; and, in determining best interests, the court is required to consider all relevant factors, including those set forth in subsection (C)" of A.R.S. 25-409. McGovern, 210 Ariz. at 178.

    Therefore, when the court considers an in loco parentis petition, the court must presume that a fit parent's decision with respect to that visitation was made in the best interests of the children, and that parent's opinion must be accorded special weight.

    The Court next addresses Hochmuth's assertion that grandparent rights precedent should not apply to the case at hand, and that Hochmuth should be awarded greater visitation due to the closeness of her relationship with the family.  The Court disagrees with this contention and asserts that Hochmuth's relationship with the child and Egan is not a sufficient basis in and of itself to find that more visitation than what was offered by the parent is in the child's best interests.  Since Arizona does not recognize the common law de facto parent doctrine, Hochmuth does not automatically enjoy a right to visitation, and the Court must apply the factors enumerated in A.R.S. 25-415 and 25-409 to determine if visitation is appropriate.

    The Court discusses the distinctions between parenting time available to persons defined by law as parents and the visitation available for non-parents (such as Hochmuth) to demonstrate that rights of visitation are more limited in scope than rights to parenting time.  A right to visitation therefore does not trump the custodial rights vested in Egan.

    The Court also concludes that the factors enumerated in 25-409(C) must also be considered in this case.

    Therefore, the superior court must consider all of the above items (ie, a rebuttable presumption the the parent's decision to limit visitation is in the child's best interests, the parent's wishes must be given special weight, the court must consider the factors outlined in ARS 25-409(C) and other relevant best interests factors, and the burden of proof rests with the nonparent to demonstrate visitation is in the child's best interests) to determine whether a person standing in loco parentis should be awarded visitation.

    In this case, the superior court had discretion to order visitation for Hochmuth, and the question is whether that court abused its discretion in awarding Hochmuth substantially equal parenting time.  The Court concludes that the superior court did abuse its discretion.  First, the superior court does not appear to have granted any special weight to Egan's preferences with respect to parenting time, and nor did it apply the A.R.S. 25-409(C) factors.  Furthermore, as a matter of law the grant of equal visitation to a non-parent was unreasonable, as the custody order gives Hochmuth a substantially similar ability to direct the upbringing of the child as that enjoyed by Egan.  The award of equal visitation is therefore a greater intrusion on Egan's right to parent her child than what was contemplated by the legislature.

    Therefore, the Court erred in awarding Hochmuth equal visitation.

    This opinion also has a special concurrence from Judge Daniel Barker.  Judge Barker agrees with the outcome, but he would reject the parties' stipulation that Hochmuth stood in loco parentis to the child and deny visitation on the grounds that the in loco parentis statute does not grant Hochmuth rights.  His reasoning is that only a person who has acted as a parent may stand in loco parentis, and Hochmuth cannot qualify as a parent based on her sex because the child already has a mother in Egan, and the legislature did not intend to modify gender terms associated with parenting in the in loco parentis statute.  Judge Barker also believes that Hochmuth should have been required to show by clear and convincing evidence that the limitations on visitation imposed by Egan were unreasonable and not in the child's best interests.

Duwyenie v. Moran, 2009 Ariz. App. LEXIS 17 (Ariz. Court of Appeals, Division Two)

    The facts of this case are that the parents had a child born out of wedlock.  Mother is a member of the San Carlos Apache Tribe in Arizona; father is a member of the Rosebud Sioux Tribe in South Dakota.  When the parties ended their relationship, they agreed to share joint legal and equal physical custody of the child.  However, when father exercised parenting time, he absconded with the child to South Dakota and obtained a temporary custody order from the Rosebud Sioux Tribe.  The tribes conferred afterwards and agreed to let the matter proceed in Gila County Superior Court, but the Rosebud Sioux Tribe asserted jurisdiction again after that agreement.  Mother then filed an action in Gila County Superior Court.  The court determined that the home state of the child was Arizona, and entered orders determining paternity, custody, parenting time, and child support.  Father appealed.

    Father claims that Arizona improperly exercised jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) by refusing to recognize the Rosebud Sioux Tribe's assertion of jurisdiction over the child.  Jurisdiction to make a custody determination is vested in the child's home state.  The home state is defined as where the child resided for six consecutive months prior to the filing of a custody action.  The Court does not believe Arizona lost home state status through Father's unauthorized removal of the child from the state, and thinks finding otherwise would encourage removal of children from the state at the onset of a custody action.  Furthermore, mother promptly initiated an action through the San Carlos Apache Tribe after her son was removed from the state.  Since the Rosebud Sioux Tribe never had home state jurisdiction, Arizona was not obligated under the UCCJEA to defer to the Rosebud Sioux Tribe's decision.

    Therefore, the Arizona court properly exercised jurisdiction in accordance with the UCCJEA in this case.

Maximov v. Maximov, 1 CA-CV 07-0914 (Arizona Appellate Court, Division One)

    This appeal stems from a dissolution proceeding in Maricopa County.  Husband filed for dissolution in October 2005.  On March 30, 2006, the Court entered temporary orders requiring husband to pay wife temporary spousal maintenance and child support totaling $7,500.00 per month effective April 2006.  Husband paid this amount from April 2006 through September 2006, for a total of $45,000.00.  In September 2006, husband moved to modify the temporary orders on the grounds that he could not afford the $7,500.00 payments.  The court deferred ruling on the issue until trial.  Husband stopped paying the $7,500.00 every month from October 2006 through July 2007, when the court issued its ruling.  The court reduced husband's combined support obligation to $1,826.34 per month and made this obligation retroactive to when husband was initially order to pay temporary support in April 2006.  The court apportioned the $45,000.00 of total payments husband had made from April 2006 through July 2007 to determine that husband overpayed his support obligation fyr $2,250.00 in temporary support.  Wife contends that A.R.S. 25-327 provides that the modification in support should only be retroactive to when husband filed his petition for modification of temporary orders, and that husband therefore owes wife a total of $18,263.40 in past support accumulated between October 2006 and July 2007.

    The Court first examines the language of A.R.S. 25-329 and determines that this statute applies to decrees regarding maintenance or support, and not temporary orders.  A.R.S. 25-315 is the applicable statute for modification of temporary orders, and nothing in this statute prevents the Court from making an Order effective prior to the date when the petition is filed.  A.R.S. 25-315 also does not require the superior court to expressly find good cause to modify a temporary support order, and there was sufficient evidence here to support the court's ruling.

Thomas v. Thomas, 1 CA-CV 07-0471 (Arizona Appellate Court, Division One)

    Husband and wife agreed to deliberately omit reference to a condo they owned while married in their Decree of Dissolution of Marriage.  After the parties were divorced, husband gave wife a quit-claim deed on the condo that wife was to hold as security against a loan husband took out on another property owned by wife.  However, wife violated the terms of their agreement and recorded the quit-claim deed.  Husband brought suit asking the court to award him half of the equity in the condo.  The trial court entered an order to this effect, and wife appealed on the grounds that the trial court lacked subject matter jurisdiction to enter orders pertaining to the condo.

    The division of property in an action for dissolution is governed by A.R.S. 25-318, which requires the court to equitably divide all community, joint and other property between the parties.  However, A.R.S. 25-318(D) specifically states that "community, joint tenancy and other property held in common for which no provision is made in the decree shall be from the date of the decree held by the parties as tenants in common, each possessed of an undivided one-half interest."  The language of the statute makes it clear that ownership of the property transmuted as a matter of law from community property to a tenancy in common at the time the Decree was entered, and the family law court therefore is divested of jurisdiction over the condo.  Therefore, husband must file a civil action to address his concerns pertaining to the condo.

Hart v. Hart, 1 CA-CV 07-0794 (Arizona Appellate Court, Division One)

    The parties were divorced in 2003.  Mother was awarded sole legal and primary physical custody of the children.  In 2005 mother petitioned to move with the children to Texas, and her petition was granted.  In July 2007, father filed a petition to modify custody.  After the hearing, the superior court determined that it would be in the children's best interests to live with father in Arizona, and for mother to exercise supervised visitation with the children during the summer and school breaks.  Mother appealed.

    Mother argues that the superior court abused its discretion because it did not make findings of fact required by A.R.S. 25-403 in determining that a change in custody was in the best interests of the children.  Father argues that the Court should presume that the family law court made all of the necessary findings as long as there is sufficient evidence on the record to support the court's ruling.  

    A.R.S. 25-403(B) states "[i]n a contested custody case, the court shall 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."  The superior court decision does not refer to any of the factors enumerated in the statute.  Therefore, the superior court's decision was an abuse of discretion, because the court was mandated to make the findings of fact in A.R.S. 25-403, and the court did not make the necessary findings.

    Mother also argues that the court abused its discretion by ordering that mother's parenting time be supervised because father never requested supervised parenting time, and the court did not make any findings to support the need for supervised parenting time.  Supervised parenting time is governed by A.R.S. 25-410(B) or A.R.S. 25-411(D).  These statutes allow the court to award supervised parenting time if the children would be endangered by the parent.  However, unlike A.R.S. 25-403, the supervised parenting time statutes do not require findings of fact on record to support an order for supervised parenting time.  Therefore, it was not an abuse of discretion for the court to order supervised parenting time without making specific findings of fact about the appropriateness of the supervised parenting time.

    Ordinarily, the Court assumes that the superior court uses the proper legal standard absent a showing to the contrary.  In this case, the Court notes that the superior court's order stated that supervised parenting time was appropriate because such parenting time was in the best interests of the children.  This standard was error, as A.R.S. 25-410(B) and A.R.S. 25-411(D) require the court to determine that supervised parenting time is necessary to protect the child from being endangered by the parent, rather than determining that supervised parenting time is in the best interests of the child.  Since the order by its own terms used an incorrect standard in ordering supervised parenting time, that order was error, and the issue is remanded for a determination under the proper supervised parenting time standard.

Barnett v. Jedynak, a CA-CV 07-0558 (Arizona Appellate Court, Division One)

    Husband and wife were married in 2004, but had lived together since 1999.  Husband purchased a home in his own name in 2002 where the parties lived.  The parties divorced in 2006.  The superior court initially order that the equity in the home be divided equally between the parties.  Husband filed a motion to alter or amend the judgment, arguing that a value-at-dissolution formula similar to that articulated in Drahos v. Rens should be used to determine the community interest in the home, because the home had appreciated prior to marriage.  The wife argued that the original court order was appropriate, as wife had shared responsibility for payment of the mortgage since the home was purchased.  The superior court granted husband's motion and directed him to submit an appropriate formula to determine the community interest in the home.  Husband submitted the formula of C/[A+C]x[D-B], where "A" is the down payment plus principal payments made prior to marriage plus the appraised value of the home as of the date of marriage less the balance on the mortgage, "B" is the appraised value as of the date of the marriage, "C" is the community contribution to the principal, and "D" is the value of the home as of the date of dissolution.  The trial court accepted this calculation, and wife appeals.

    The Court notes that Arizona does not recognize common law marriages, and there was no evidence that the parties had entered into an express agreement to jointly own the home.  Wife's contributions toward the mortgage prior to marriage therefore cannot be considered as part of the community's lien on the home.

    However, the Court does identify two problems with the formula proposed by husband to calculate the community interest in the home.  First, the formula does not provide reimbursement to the community for contributions to the principal.  Secondly, the formula adds the community contribution to the principal to husband's separate equity, which creates a larger denominator and shrinks the community's interest.  The formula therefore is not in accordance with the principles articulated in Drahos v. Rens or Marsden v. Marsden.

    The Court finds that the appropriate formula to use where separate property appreciates both before and after marriage is to divide the community's contributions to principal by the value of the property at the time of marriage, rather than at the time of acquisition.  In algebraic form, the formula to determine the community's interest in the property is C+[C/BxA], where "A" is the appreciate of property during marriage, "B" is the appraised value of the property as of the date of marriage, and "C" is the community contribution to principal.

Engel v. Landman, 1 CA-CV 07-0587 (Arizona Appellate Court, Division One)

    The parties in this case were divorced in 2004.  Father was ordered to pay $2,000 a month in child support.  Father filed a petition to modify child support in 2006, alleging that the income attributed to mother (who was voluntarily unemployed) should be increased because mother had received an inheritance and had the capacity to earn income as an accountant.  The court found that mother's income exceeded $13,000.00 per month, and that father's income exceeded $20,000.00 per month.  The court modified father's support obligation to $1,686.99 per month.  Both parties appealed.

    The Court determined that it did not have jurisdiction to hear mother's appeal, so the Court only considered the issues raised by father.  Father argued that the superior court erred by attributing hypothetical child care costs to mother.  The Court reviewed Section 5(c) of the Arizona Child Support Guidelines, which allows courts the discretion to attribute income to a parent who is not working in order to protect the employed parent from responsibility for a disproportionate amount of the total support obligation.  The court is directed to consider several factors in determining whether attributing income is appropriate, including why the parent has chosen to be unemployed and the financial effect on the children.  If income is attributed, the court may then also attribute hypothetical child care expenses. 

    However, in cases such as this where a parent has a high level of income, the highest possible combined total support obligation is reached based on one parent's income, and the income earned by or attributed to the other parent has no impact on the total child support obligation.  The only impact from attributing income to the other parent is to increase that parent's proportional share of the support obligation, which has the effect of reducing the support obligation and transferring the burden to the children, since the attributed income is only hypothetical.  This effect is ordinarily attentuated by also attributing child care expenses.  However, in cases such as this where one parent earns significant income and continues to bear the majority of the proportional responsibility for child support, inclusion of hypothetical child care expenses only increases the total child support obligation, and therefore the amount that is paid by the employed parent.  The inclusion of hypothetical child care expenses in this case therefore had the effect of creating a deviation from the child support amount that would otherwise be proper.  The inclusion of the child care costs in this case therefore created a result that is contrary to the Arizona Child Support Guidelines purpose of protecting one parent from a disproportionate responsibility for providing for the children.  This portion of the decision was therefore reversed.

     Father also argues that the court erred by aggregating the stock options he had received in 2004, 2005, and 2006 to determine his income in 2007.  The trial court used the Murray method to value the stock options, which entails adding the total number of unexercised shares from all of the options, and then multiplying this number by the stock price increase for the year.  However, this method appears to make the support of a child dependent on market fluctuations that do not effect the funds available to support the child.  The Court feels that a better method to value the stock options in this case would be to examine the agreement between the parent/employee and the employer to determine what value was placed on the stock options as part of the employment negotiations.  The Court declines to approve of a particular accounting method, as the appropriateness of the methods vary on a case-by-case basis.  Instead, the court should select a method that addresses the nature of the stock options, taxes, and any other circumstances specifically applicable to the situation, and then apply a reasonable rate of return.  The Court therefore vacates the decision with respect to the valuation of father's stock options as part of his income for the child support calculation.

Protections for Domestic Partners

Arizona is a community property state. Therefore, when a married couple divorces, all property acquired by the spouses during the marriage is treated as belonging equally to both spouses, and all assets and debts will be equitably divided between the parties. However, there is little law in Arizona addressing the end of a relationship between co-habitating couples. Cohabitation is defined as a relationship between two individuals who are not related by blood but live in the same residence. Co-habitating couples are not married, either because they have no legal right to do so, or have decided for reasons of their own not to formalize their relationship into a marriage. Arizona does not recognize common law marriages, and Arizona only applies community property law to married couples. Therefore, when a relationship between a domestic partners ends, the distribution of assets and debts is usually governed by general contact law. However, the use of general contract law in such situations often creates inequitable results, as co-habitating couples rarely solemnize their living arrangements into a formal, written contract.

Some protections exist under several areas of Arizona law that can assist domestic partners at the end of a relationship. A brief description of those protections and how to obtain these items follows.

City of Tucson Domestic Partnership Registry

In 2003, the City of Tucson enacted a domestic partnership registry. In order to register a partnership, the partners must affirm that they are not blood relatives with a closer relationship than what would prevent marriage in the State of Arizona, that neither party is married, that the partners are over the age of eighteen, that they are competent to enter into a contract, that they are each other’s sole domestic partner, and that they currently share a residence, share a relationship of mutual support, and declare that they intend to remain in the partnership in the indefinite future.

The language of the domestic partnership registry is gender-neutral, so it is open to any couples who wish to participate and meet the above-qualifications. The cost of entry into the domestic relationship partnership registry is $50.00. There is no requirement that registrants reside in the City of Tucson.

Participation in the City of Tucson Domestic Partnership Registry confers two benefits on to participants: registered partners have a right to visit his/her partner in a health care facility as long as the patient partner consents,

and registered partners enjoy a right to extended use of and access to city facilities as if the registered domestic partners were spouses.

Cohabitation Agreements

Co-habitating partners may also enter into a contractual agreement defining ownership of assets, responsibility for debts, and respective roles in the relationship. These contracts are called cohabitation agreements. Cohabitation agreements must comply with general contract law. Therefore, the terms of the agreement must demonstrate a bargained-for exchange (ie, each person gives something, and each person gains something). It must be sufficiently specific as to its terms so that each party has a clear idea as to his/her respective responsibilities and benefits. The terms of the contract also cannot be the product of fraud, duress, or be unconscionable.

Two Arizona cases address the enforcement of cohabitation agreements. The first case was Cook v. Cook, which was decided by the Arizona Supreme Court in 1984. This case involved a couple that lived together for several years and acquired property that was held as joint tenants with the right of survivorship, including bank accounts, stock, vehicles, and a home. When the relationship ended, the man kept the majority of the property, and the woman sued him on a theory of implied partnership. The Supreme Court found that the parties had an express agreement and intention to share the items they purchased, even though that agreement had never been reduced to writing. The Court held that a contractual promise "may be inferred wholly or partly from conduct, and there is no distinction in the effect of the promise whether it is expressed in writing, or orally, or in acts, or partly in one of these ways and partly in others." Cook v. Cook, 142 Ariz. 573, 576 (1984). An agreement between co-habitating partners is therefore enforceable, provided that "it is supported by consideration and that consideration is not contrary to public policy." Id.

The concept of adequate consideration was further defined two years later in Carroll v. Lee, where a women sued her former partner for partition of their property under a theory of implied contract. In this case, the man’s contributions to the partnership were largely financial in nature, whereas the woman’s contribution was homemaking services. The Arizona Supreme Court held that consideration is defined as "a benefit to the promisor and a detriment to the promisee" and that "consideration need not be of like or identical value" Carroll v. Lee, 148 Ariz. 10, 13 (1986). In fact, "courts do not ordinarily inquire into the adequacy of consideration." Id. The Supreme Court held that the woman was entitled to a portion of the property acquired during the relationship.

Therefore, a cohabitation agreement will generally be enforceable under Arizona law provided that there is consideration for the agreement, and that consideration does not violate public policy. The primary consideration concern in such agreements will be demonstrating that the consideration is not based on the meretricious (sexual) nature of the relationship, as this would violate public policy. However, since the Court will not inquire into the adequacy of consideration, as long as the partners are both contributing something tangible other than sexual favors in the relationship, the consideration will be sufficient.

The above-discussed cases saw enforcement of two separate cohabitation agreements that were never reduced to writing. Both of the situations in these cases could have been avoided or resolved with less litigation if the agreements had been placed in writing and signed by both parties after full disclosure of all assets and debts, and receiving advice from attorneys.

Estate Planning

Several estate planning options can serve to protect partners in a co-habitating relationship in the event of the incapacitation or death of a partner. These options include wills, powers of attorney, and trusts.

Wills

A will is a document in which a person (the testator) expresses his/her wishes as to what happens property owned by the testator after the testator’s death. In order to be valid in Arizona, a will must be in writing, executed (signed) by a testator who is over the age of eighteen and of sound mind, and witnessed by two individuals. The testator may appoint a personal representative in the will. The personal representative is then charged with implementing the wishes described in the will after the testator’s death and winding up the testator’s affairs.

The testator may also name beneficiaries in the will. A beneficiary is an individual or entity that is given property under the terms of a will. A beneficiary can receive any amount of property in the estate, or the testator can make specific bequests to a beneficiary. Naming beneficiaries in a will allows co-habitating couples to opt out of the intestacy property distribution scheme. When a person dies intestate (ie, without a will), property is distributed to the deceased’s family members. A partner in a co-habitating relationship can thus name his/her partner as the beneficiary of the estate if the partner makes a will, and that partner would be entitled to everything owned by the partner at the time of the partner’s death after the deceased partner’s debts are satisfied by the estate.

The testator can also name another person to act as guardian of the testator’s child in a will. This power can offer some protection for the family unit of a co-habitating couple. Of course, such protection is unnecessary if the partners are both legally the parents of the child. However, if the child is adopted, it is likely that only one parent is legally the parent of the child, as Arizona law does not allow domestic partners to adopt children together. If this is the case, the legal parent must appoint the other parent as the guardian. Otherwise, it is likely that the child would become a ward of the state, and could possibly be sent to live with other family members or in a foster family. However, partners should remember that naming each other as guardians of a child will not trump another legal parent’s right to the child, in the event that the child has a legal parent outside of the domestic partnership.

Powers of Attorney

A power of attorney is a legal document in which one person can appoint another to act on his/her behalf as an agent in the event that the principal becomes incapacitated. There are several different types of powers of attorney. A durable general power of attorney largely pertains to financial matters. The agent under a durable general power of attorney has the power to act for the principal to buy and sell property; to establish or use financial accounts; to access or establish safe deposit boxes; to sue on behalf of the principal; to collect monies owed to the principal; to make transactions on behalf of the principal through a brokerage firm; to employ advisors or consultants for the principal; to act on behalf of the principal with respect to any kind of insurance; to borrow funds; to do anything necessary to provide for the principal’s support at the principal’s ordinary standard of living; to act as the guardian or conservator of the principal; to create, fund, or terminate a trust, to make gifts; to reimburse the agent for out-of-pocket expenses; and to handle all tax matters. A durable general power of attorney therefore offers domestic partners some financial protections that they would otherwise not have.

Healthcare powers of attorney and mental health care powers of attorney also exists. A healthcare power of attorney authorizes the agent to make medical decisions on behalf of the principal when the principal is unable to make those decisions. This includes the power to consent or refuse treatment, review medical records, discuss treatment and prognosis with doctors, and admit or discharge the principal from a healthcare facility. These powers are very significant for co-habitating couples, as often the healthy partner would otherwise have no right even to see the incapacitated partner, much less make decisions for that partner, despite the fact that the healthy partner may often have the best knowledge as to the incapacitated person’s wishes.

A mental healthcare power of attorney conveys similar powers as a healthcare power of attorney, but it is tailored to situations where the principal is found to be incapable of making decisions on his/her behalf. The agent for this power of attorney has the authority to make mental health treatment decisions on behalf of the agent. Again, a domestic partner would not have any right to be involved in the treatment or care of a partner absent this document.

Trusts

A trust is a legal arrangement where the right to certain property is held by one person to benefit another person. The original owner of the property is called the settlor. The settlor places certain property in the care of a trustee, who is charged with administering that property for the benefit of the beneficiary. Title to the property passes from the settlor to the trustee, but the trustee has a fiduciary duty toward the beneficiary to administer the property for the benefit of the beneficiary and in accordance with the terms and limits imposed by the trust document. A trust may be created for any purpose that is not illegal or against public policy.

A trust is therefore an ideal mechanism for a settlor to provide for the support of a partner or for their children, as the trustee may only use the trust property for the purposes outlined in the trust and for the benefit of the beneficiary. Property may be conveyed into the trust at the time of formation of the trust, or at the time of death of the settlor if a "pour-over" clause is included in the settlor’s will that shifts property in the settlor’s estate to the settlor’s trust at the time of death. Thus, the trust is a legal mechanism that allows a domestic partner to opt out of the intestacy property system that would require the estate to be distributed amongst family members, and instead offer protection to partners.

Order of Protection

    An Order of Protection is an order that can be obtained from the Court to prevent a defendant from contacting the victim.  There are certain requirements for obtaining an Order of Protection.  First, there must be a relationship between the parties.  An Order of Protection can only be obtained if the defendant and victim are married, formerly married, residing or have resided in the same household, or if the parties have a child in common or one party is pregnant by the other.  Other relationships that are sufficient to allow a victim to obtain an Order of Protection include when the victim is related to the defendant or the defendant's spouse as a parent, grandparent, step-grandparent, stepchild, step-grandchild, brother-in-law, sister-in-law.  A child who is a victim may also obtain an Order of Protection if the child has resided with the defendant or is related by blood to a former spouse of the defendant.

    Additionally, the defendant must have committed a crime against the victim before the victim can obtain an Order of Protection.  The predicate offenses are outlined in A.R.S. 13-3601(A) and include dangerous crimes against children, including sexual crimes, murder, or injuries caused by the manufacture of methamphetamine (see A.R.S. 13-705); endangerment (13-1201); threatening and intimidating the victim (13-1202); assault (13-1203); aggravated assault (13-1204); custodial interference (13-1303); unlawful imprisonment (13-1303) kidnapping (13-1304); criminal trespass in the first, second or third degree (13-1502 through 13-1504); criminal damage (13-1602); interfering with a judicial proceeding (13-2810); some instances of disorderly conduct, includingviolent or seriously disruptive behavior, unreasonable noise, offensive language, or reckless handling of a deadly weapon or dangerous instrument (13-2904(A)(1),(2),(3), &(6)); use of a telephone to terrify/harass/offend (13-2916); harassment (13-2921); aggravated harassment (13-2921.01); stalking (13-2923); surreptitiously photographing or viewing the victim (13-3019); aggravated domestic violence (13-3601.02); or child/vulnerable adult abuse and emotional abuse (13-3623).

    An Order of Protection can be obtained in most of the courts located in Pima County.  However, if there is also a family law matter pending between the victim and the defendant, the Order of Protection proceeding will be consolidated with the family law proceeding, and both will be heard by the family law judge.  It should also be noted that an Order of Protection does not have the power to modify custody orders.  Therefore, if the victim is a child, and the defendant is a person who has custody of the child or is entitled to exercise parenting time with the child, an Order of Protection is not the proper mechanism to alter the custodial or parenting time arrangement. 

    An Order of Protection is effective for up to a year after it is obtained.  However, the defendant has a right to challenge the Order of Protection at any time.  If the defendant requests a hearing on whether the Order of Protection should stand, the Court is required to set the matter for hearing within ten (10) business days of receipt of defendant's request.  There is one exception to this rule - if the Order of Protection excludes the defendant from his/her residence, and the defendant challenges the Order of Protection, a hearing must be set on the matter within five (5) business days.

    It is possible to obtain an Order of Protection when the courthouses are closed.  A temporary Order of Protection is available from the police under these circumstances.  However, the temporary Order of Protection is only valid until the next business day, so at that time the victim must obtain an official Order of Protection from a courthouse.

The Involvement of Children in Family Law Proceedings

    Most courts assume that the involvement of children in divorce proceedings should be kept to a minimum.  In fact, it is common for judges to enter orders prohibiting both parents from discussing the divorce litigation with the children.  Children are generally not allowed to testify in a divorce proceeding, even though minor children of divorcing parents will clearly be effected by the decisions made by the court.  Judges are reluctant to allow the testimony of children because no judge wants to place a child in a position where the child is required to make a choice between parents, as being forced to make such a decision is psychologically damaging to a child.  Children are also not included as parties to a divorce proceeding, even though the proceeding will touch upon many aspects of the child's life. 

    However, there are also certain statutes directing the Court to opinions of the children before making decisions.  For example, in Arizona the "wishes of the child as to the custodian" is one factor the Court is required to consider in making an award of legal custody.  A.R.S. 25-403(A)(2).  The child's opinion is also a factor considered in relocation cases. See A.R.S. 25-408.  The conflicting positions regarding children in divorce create a conundrum for the court - how do you obtain the opinion of the child when the child is not allowed to participate in the proceeding? 

    A well-known case addressing this difficulty is Auclair v.Auclair, an opinion out of Maryland where the children of a divorcing couple attempted to intervene as parties in the divorce proceeding.  See 730 A.2d 1260(1999).  In this case, the Court acknowledged that the children's parents could not represent the children's interests to the Court because the parents had clear conflicts of interest. Id. The Court also recognized that the children "have a substantial interest in the outcome of their parents' custody dispute and are individuals with rights recognized by the court".  Id. However, the court refused to allow the children to intervene as parties in their parent's divorce proceeding on the grounds that the intervention was not provided for in Maryland statutes, the children lacked capacity, and because some mechanisms were in place that sufficiently protected the children's interest in the proceeding.  Those protections included appointing a guardian ad litem to "fill various roles, including reporting the children's preferences, investigating the reasons for the children's preferences, and making an independent determination of their best interests." 

    Arizona law provides for similar avenues to protect the children's interest in the proceeding and allow their opinions to be heard while simultaneously preventing the children from direct participation in the lawsuit as parties or witnesses.  For example, A.R.S. 25-405(A) allows the judge in a family law proceeding to "interview the child in chambers to ascertain the child's wishes as to the child's custodian and as to parenting time."  A.R.S. 25-405(B) also gives the Court the authority to "seek the advice of professional personnel, whether or not employed by the Court on a regular basis" to assist the Court in determining the best interests of the children.  Rule 10 of the Arizona Rules of Family Law Procedurealso contains certain mechanisms to protect the interest of the children in a family law proceeding.  Rule 10 allows the the appointment of a best interests attorney, a child's attorney, or a court advisor when "a. there is an allegation of abuse or neglect of a child; b. the parents are persistently in significant conflict with one another; c. there is a history of substance abuse by either parent, or family violence; d. there are serious concerns about the mental health or behavior of either parent; e. the child is an infant or toddler; f. the child has special needs; or g. any other reason deemed appropriate by the court." 

    After appointment, a child's attorney or a best interests attorney is permitted under Rule 10 to participate in the litigation "to the same extent as an attorney for any party."  The distinction between the two appointments is that the child's attorney is meant to represent the child's opinions and positions; whereas the role of the best interests attorney is to advocate for the best interests of the child in the court proceeding.  The role of the court advisor is somewhat different.  First, the court advisor is not required to be an attorney.  As this distinction suggests, the court advisor does not participate in the litigation as an attorney would do.  Instead, the court advisor testifies or submits a report containing recommendations on the best interests of the child and the basis for those recommendations.  Id.  The attorneys involved in the case, including a best interests attorney or a child's attorney, are entitled to cross-examine the court advisor about the court advisor's recommendation.  Id. 

    Another option frequently utilized by the court to obtain objective input about the dynamics of a family and the opinions of the children is a custodial evaluation.  A custodial evaluation is somewhat similar to the procedure followed by a court advisor.  When a custodial evaluation is ordered, a professional (generally a licensed psychologist) has the authority to interview family members, observe interactions, and receive character references.  The custodial evaluator then creates a recommendation to suit the needs of the family and that will best protect the children.  That recommendation is then submitted to the court and the parties.

    In conclusion, while Arizona does not allow children to actively participate in family law proceedings involving parents, there are several mechanisms that enable the court to hear the voice of the child, and to obtain independent feedback as to the best interests of the child.

Domestic Violence & Family Law

    Family law proceedings encompass actions for divorce, paternity, post- divorce/paternity decree actions, and litigation involving custody of a child or child support.  Sadly, domestic violence is also often an issue in family law proceedings.  Below is an account of the impact domestic violence has on different aspects of family law.

    Domestic violence does not have an impact on the property distribution in a proceeding for divorce in Arizona.  Arizona is a no-fault divorce state, which means that the Court cannot consider the behavior of one or both spouses in granting a divorce.  Instead, the Court will grant a divorceif the marriage is irretrievably broken, and the distribution of property proceeds in accordance with the principles of community property law.  The concept of community property is premised on the idea that property acquired by the community is owned equally by the spouses, and that the community property is therefore subject to an equitable (usually equal) division at divorce.  Domestic violence, adultery, and other fault-based concepts are not considered in the property distribution at divorce.

    Domestic violence is also not a factor in determining if a spouse is entitled to an award of spousal maintenance.  Spousal maintenance in Arizona is governed under A.R.S. 25-319.  A spouse must meet at least one of the qualifications enumerated in Part A of the statute in order to be considered for a maintenance award.  The qualifications in Part A do not include domestic violence and are instead focused on the ability of the spouse to be self-supporting, contributions to the education of the other spouse, and the length of the marriage.  

    However, in the event that a victim of domestic violence meets one of the threshold requirements for spousal maintenance listed in A.R.S. 25-319(A), domestic violence may be considered by the Court in determining the amount and duration of the award of maintenance.  A.R.S. 25-219(B)(13) allows the Court to consider "[a]ll actual damages and judgment from conduct that results in criminal conviction of either spouse in which the other spouse or child was the victim."  Therefore, if the domestic violence charges result in a conviction, the domestic violence may be relevant in determining the amount/duration of the spousal maintenance award.

    Domestic violence is relevant in cases involving the custody of a child.  A.R.S. 25-403.03 states that "joint custody shall not be awarded if the court makes a finding of the existence of significant domestic violence pursuant to section 13-3601 or if the court finds by a preponderance of the evidence that there has been a significant history of domestic violence."  Domestic violence is presumptively against the best interests of the child, as a history of domestic violence clearly impacts the safety and well-being of the child. In order to determine if significant domestic violence has occurred so that an award of joint legal custody is inappropriate, the Court must consider all relevant factors, including findings from other courts, police reports, medical reports, reports generated by CPS or a domestic violence shelter, witness accounts, and school records.  See A.R.S. 25-403.03. 

    If the Court determines that a parent committed an act of violence against the other parent, there is a rebuttable presumption that an award of custody to the perpetrator is against the child's best interests (provided that both parents have not committed acts of domestic violence).  A.R.S. 25-403.03.  For purposes of this statutes, domestic violence is defined as "[i]ntentionally, knowingly or recklessly causes or attempts to cause sexual assault or serious physical injury"; acting in a manner that "[p]laces a person in reasonable apprehension of imminent serious physical injury to any person;" or engaging "in a pattern of behavior for which a court may issue an ex parte order to protect the other parent who is seeking child custody or to protect the child and the child's siblings." A.R.S. 25-403.03.  The statute also enumerates factors that may allow the perpetrator parent to rebut the presumption against joint legal custody.

  Domestic violence also impacts parenting time between the children and the perpetrating parent.  If a parent is found to have committed an act of domestic violence, that parent has the burden or proving "that parenting time will not endanger the child or significantly impair the child's emotional development" prior to spending time with the child.  A.R.S. 25-403.03.  The Court may also impose restrictions associated with the parenting time, such as requiring that the parenting time be supervised by a neutral party, that exchanges of the child be supervised, drug/alcohol testing, or counseling.

    Finally, domestic violence is not a consideration in determining the child support obligation.  Instead, child support depends on the respective monthly gross incomes of the parties, the amount of time spent with the children, and other factors such as the payment of medical insurance for the children and daycare expenses.

Domestic Violence Information and Resources

 What is Domestic Violence?

    Domestic violence is a violent confrontation between members of the same family or household that involves physical harm, sexual assault, or fear of physical harm.  These episodes are often repeated, tend to escalate over time, and are designed to intimidate, manipulate, and control the victim.  Domestic violence occurs among people of all races, ages, socio-economic backgrounds, occupations, and religious affiliations.  These behaviors are not attributable to drugs, alcohol abuse, or the behavior of the victim.  Domestic violence is against the law in the state of Arizona.

    Domestic violence is a serious problem in the United States.  In fact, domestic violence is the leading cause of injury to women between the ages of fifteen and forty-four in the United States - more than car accidents, muggings, and rapes combined.  See "Violence Against Women, A Majority Staff Report," Committee on the Judiciary, United States Senate, 102nd Congress, October 1992, p. 3.  Three to four million women in the United States are beaten in their homes each year by their husbands, ex-husbands, or male lovers.  "Women and Violence," Hearings before the U.S. Senate Judiciary Committee, August 29 and December 11, 1990, Senate Hearing 101-939, pt. 1, p. 12.  Furthermore, about one out of every four women are likely to be abused by a partner in her lifetime.  Sara Glazer, "Violence, Against Women" CO Researcher, Congressional Quarterly, Inc., Volume 3, Number 8, February, 1993, p. 171.  There is no reason to believe that these statistics are any better in Arizona.  In fact, domestic violence is often correlated to stress, so it is likely that domestic violence is becoming more prevalent in today's difficult economic times.

Warning Signs

    Many behaviors are considered to be warning signs of domestic violence or domestic abuse.  Physical behaviors indicative of domestic violence include hair pulling, biting, shaking, pushing, pinching, choking, kicking, confinement, slapping, hitting, punching, using weapons, forced intercourse, unwanted sexual touching in public or in private, and deprivation of food or sleep.  Emotional abuse is also associated with domestic violence, and includes such behaviors as insults in public or private, putting down friends and family, making the victim feel bad about him/herself, calling names, playing mind games, making the victim think s/he is crazy or guilty, humiliation, treating the victim like a servant, and making all of the big decisions for the household without input from the victim.  Economic abuse is another warning sign.  Economic abuse includes preventing one person from being employed, making the victim ask for money, taking the victim's money, giving the victim an allowance, denying access to family income or demanding exclusive control over household finances, and not consulting the victim about important financial decisions. 

    Coercion and threats are also associated with domestic violence and include such behaviors as threatening to leave or to commit suicide, threatening to harm the victim, children, or pets, or to force the victim to engage in illegal actions.  Intimidating behaviors, such as brandishing weapons, destroying property, dangerous driving, abusing pets; and isolating behaviors, such as limiting outside contact by any means, are also common.  Batterers also often engage in blaming actions, such as claiming that the victim is over-reacting, the victim caused the behavior, accusing the victim of being unfaithful, or denying that the incident occurred.

What to Do if You are a Victim

    1.    Call 911.  Report the incident, and keep the report number with other important records.

    2.    Seek medical treatment if necessary.  Have any injuries photographed and documented.

    3.    Go to a safe place.

    4.    Talk to someone you care about.  Seek the support of your loved ones to cope with the abuse.

If You Are a Victim & Want to Leave

    You deserve to live a life free of abuse.  If you choose to end an abusive relationship, there are several steps you can take to protect yourself and the children.  If you remain in the residence you previously shared with your batterer, change the locks on the windows and doors of the residence.  Install motion sensor lights outside.  Alert neighbors or landlords that you have ended the relationship and ask them to notify you and the police if they spot your batterer close to your residence.  Contact your child's school/daycare to notify them that the batterer is not to pick up the child.  Obtain an Order of Protection that prevents the batterer from contacting you.  Notify your place of employment and share pictures of your batterer so you will be informed if your abuser tries to contact you at work.  Ask another person to walk with you to your vehicle or bus stop, and vary your routes home.

    In the event that a confrontation between you and your batterer is inevitable, move to a room or area with an exit.  Always avoid the kitchen, bathroom, or a room containing weapons.  Prepare for the confrontation before it occurs, even if you do not think such an event will happen.  Ask your neighbors to call the police if they hear a disturbance, and devise a code word to share with family and friends that will alert them that you are in trouble and require assistance.  Keep a bag packed and hidden in a readily accessible place, and devise a plan for where you will go if you must flee the residence.  If you are in a dangerous situation, consider giving the batterer what he wants so you can escape without harm.

    If you decide to leave the situation, plan carefully to increase your safety.  Batterers often lash out when they believe that the victim is leaving the relationship.  Think about where to go when you leave.  Take important documents and items with you, such as your identification, driver's license, birth certificate, and social security card.  Also take these items for your children, as well as their school and vaccination records.  Take money, credit cards, welfare identification, work permits, Green Cards, passports, and important legal documents such as your divorce papers or Order of Protection.  Take your keys to your vehicle, home, and workplace, bank papers, an address book, and items with sentimental value to you or your children. 

Resources in Tucson

    You are not alone.  Several agencies and hotlines in Southern Arizona are there to assist victims of domestic violence.  Law enforcement and emergency medical services can always be reached by dialing 911.  Other resources are listed below:

Arizona Child Abuse or Neglect Hotline: 1-888-SOS-CHILD or 1-888-767-2445

Arizona Coalition Against Domestic Violence: 1-800-782-6400

Boys Town National Hotline: 1-800-448-3000

Brewster Center Crisis Hotline: 520-622-6347

Casa Amparo Crisis Hotline: 520-746-1501

Children's Crisis Services: 520-628-5241

Help on Call Crisis Hotline: 520-323-9373

National Domestic Violence Hotline: 1-800-799-7233

Parents Anonymous of Arizona Hotline: 1-800-352-0528

Regional Behavioral Health Services: 1-800-771-9889

Tohono O'odham Tribe (Sells, Arizona): 520-383-6300

Tohono O'odham Victims Witness: 520-383-4590

Southern Arizona Center Against Sexual Assault: 520-327-1171

Tucson Centers for Women and Children: 520-795-4266

    Several agencies also operate safe houses or domestic violence shelters.  The Brewster Center, Tucson Centers for Women and Children, and Casa Amparo all operate safe houses and can be reached at the above-listed numbers.  Casa de los Ninos is a shelter exclusively for children and can be reached at 520-624-5600.  Open Inn may be reached at 520-323-0200; Our Town Family Center at 520-323-1706, and the Salvation Army at 520-622-5411.  Other resources may be available through your place of worship.

Good luck, and stay safe.

This articles relied on information obtained from the Clark County Prosecutor's Office (http://www.clarkprosecutor.org/html/domvio/domvio.htm),  and the Tucson Centers for Women and Children (http://www.tucsoncenters.com/resources.htm).  

Qualified Domestic Relations Orders

    In today's economy, retirement benefits are often the most valuable assets to be divided as part of a divorce.  However, the division of retirement benefits is often a tricky business.  Many retirement plans are defined benefit plans, which means that the amount of money the employee receives is correlated with the number of years worked by the employee and the highest salary earned by the employee.  This presents obvious valuation difficulties when the employee goes through a divorce.  There is no way to determine precisely how long an employee will work or how high a salary the employee will earn, unless the divorce takes place immediately prior to retirement.  It is also possible that the employee spouse will die or be terminated from the employment prior to retirement. 

    All of the factors listed above make assigning a specific monetary value to a defined benefit plan an impossible task.  Instead, attorneys utilize Qualified Domestic Relations Orders (QDROs)to effectuate the division of retirement benefits.  A QDRO is an order issued by a judge as part of a family law proceeding.  It requires the administrator of a retirement plan in which a party to the action participates to set aside the portion of the retirement account that the other spouse is entitled to into a separate account.  The non-participating spouse's portion is generally determined by the fraction of the number of months the parties were married divided by the number of months of participation in the plan.  The plan administrator is thereafter responsible for administering both accounts, and the non-participating spouse will receive his/her portion of the benefits after the retirement of the participating spouse and directly from the plan administrator.