Benavidez Law Blog

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.