An earlier version of HB 2995 set a clear and convincing standard for a parent trying to rebut the presumption. That is not the standard that made its way into the final law. The enacted Alec and Lydia Act answers that question a different way, and this article explains how.

The law has now changed to protect children and the abused parent when there is domestic violence. It is important to know what you have to prove and what the standard of evidence is. The standard of evidence is how much do you have to prove to be believed by the court. For instance, we all know the criminal standard, “beyond a reasonable doubt.” Well family law has standards also, but none that strict. There are two: “clear and convincing” and “preponderance of the evidence.”

What do the standards mean? In law school, they teach that preponderance is more likely than not. And clear and convincing is about 80%, where the criminal standard is 100%. Under the Alec and Lydia Act, only one of those two standards appears. Domestic violence is proved by a preponderance of the evidence. What happens after that finding is not governed by a standard of proof at all. It is governed by an analysis the court is required to perform. Understanding that difference helps parents know how to make their case.

Here is how the standards work under the new law, and where each one comes from in the statute.

There are two questions, and only one of them has a standard of proof

Most people assume a case has a single burden of proof. The Alec and Lydia Act does not work that way, but it does not work by stacking standards either. It asks two separate questions and treats them very differently. The first question is whether domestic violence happened. That question has a standard of proof and the Act states it plainly. The second question is whether the parent who committed the domestic violence has rebutted the presumption that follows. That question does not have a standard of proof. The Act answers it another way. It tells the court exactly what it must do. Reading the Act correctly means keeping these two questions separate.

Domestic Violence Must Be Proved By A Preponderance of the Evidence

The first question in any case is whether domestic violence happened at all. Under the Act, a claim of domestic violence is established by a preponderance of the evidence. Preponderance means more likely than not. It is the everyday standard in civil cases, and it is the only standard of proof the Act assigns.

The Act adds something important here. Corroboration from exhibits or from another witness is not required. In plain terms, a survivor’s own testimony can be enough to establish domestic violence if the court finds it more likely than not to be true. A survivor does not need a police report, a photograph, or an eyewitness to meet this standard. This is a great deal because so much domestic violence, especially coercive control, happens privately with no documentary evidence in a paper trail. See the statute:

A.R.S. § 25-403.03(C)

A claim of an act or acts of domestic violence shall be established by a preponderance of the evidence. Corroboration from exhibits or witness testimony is not required. Subject to the evidentiary standard applied to that proceeding pursuant to the Arizona Rules of Family Law Procedure, the court shall consider all of the following:

1. Factual determinations of an act or acts of domestic violence from a court of competent jurisdiction.
2. Evidence that is collected and reports that are prepared by a law enforcement agency, the department of child safety and any other government agency.
3. The alleged victim’s medical or behavioral health records, if the victim waives the associated privilege or other right to confidentiality.
4. Records from a shelter for victims of domestic violence as defined in section 36-3001.
5. Educational and school records.
6. A collateral act or acts of domestic violence against any person by the parent who is the subject of the allegation of committing an act or acts of domestic violence.
7. Witness testimony.

What a Finding of Domestic Violence Sets in Motion

Once a court finds that a parent committed domestic violence, the Act attaches a mandatory rebuttable presumption. The presumption says that giving that parent legal decision making or parenting time is contrary to the child’s best interests. The same subsection says the court may not require the victim or the child to prove that shared legal decision making or parenting time would harm the child.

That last sentence moves the burden. The parent who was abused does not have to prove the children are in danger. The parent who committed the domestic violence has to overcome the presumption.

A.R.S. § 25-403.03(F)

If the court determines that a parent committed an act or acts of domestic violence, there is a mandatory rebuttable presumption that an award of legal decision-making or parenting time to the parent who committed the act or acts of domestic violence is contrary to the child’s best interests. The court may not require the victim or child to prove that shared legal decision-making or parenting time would harm the child. A rebuttable presumption does not arise if mutual acts of domestic violence occurred. The court may not describe an act or acts of domestic violence as mutual or enter a legal decision-making or parenting time order that treats domestic violence as mutual, unless the evidence establishes that both parents had the same motive for their actions, lacked justification to similar degrees and inflicted comparable harm.

How the Court Decides Whether the Presumption Has Been Rebutted

This is where the Act does something unusual, and it is the part most worth understanding. The statute does not assign a heightened standard of proof to the rebuttal. It sets out a required judicial analysis instead. The court is told what it must review, what it must consider, and what it is forbidden to treat as mitigation.

Before reaching the rebuttal, the court has already made findings about how severe the domestic violence was: whether it risked or inflicted physical injury or emotional trauma, whether a firearm or other dangerous weapon was involved, whether strangulation was involved, whether multiple forms of coercive control were used, and whether the parent denies, deflects or minimizes the acts during treatment, forensic assessment, formal discovery or courtroom proceedings. Those findings do not sit in a separate part of the ruling. The court is required to carry them forward and apply them to the rebuttal.

Three arguments are off the table entirely. The child’s absence from the place where the domestic violence happened, the child’s unawareness that it happened, and the child’s preference for more time with that parent may not be treated as mitigation or as relevant to the rebuttal at all.

A treatment program is not a shortcut. The court may not accept a certificate of completion alone as proof of rehabilitation. A parent who wants to use a program as rebuttal evidence has to waive the privilege so the records go to the court and to the victim, establish that the program was relevant and proportionate to what that parent actually did, demonstrate an understanding of how those acts harmed the family, and prove that the program addressed and helped reduce any tendency to minimize or rationalize them.

A.R.S. § 25-403.03(G)

To determine whether the parent who committed an act or acts of domestic violence has rebutted the mandatory presumption prescribed in subsection F of the section, the court shall do all of the following:

1. Review the court’s findings prescribed by subsection D of this section and apply the court’s findings to the rebuttal determination.
2. Consider a collateral act or acts of domestic violence by the parent against anyone.
3. Not treat any of the following considerations as mitigation or relevant to the rebuttal of the mandatory presumption:

   (a) The child’s absence from the location where the act or acts of domestic violence occurred.

   (b) The child’s unawareness that a parent committed the act or acts of domestic violence.

   (c) The child’s preference for reinstating, maintaining or increasing parenting time with a parent who committed the act or acts of domestic violence.

4. Consider the parent’s attendance at a domestic violence treatment program. The court may not consider a certificate of completion alone as proof of rehabilitation. A parent who wishes to use attendance at a domestic violence treatment program as rebuttal evidence must do all of the following:

   (a) Waive the associated statutory privilege or other confidentiality necessary to release that person’s treatment records to the court and the victim.

   (b) Establish that the treatment program was both relevant and proportionate to the act or acts of domestic violence for which the parent was adjudicated.

   (c) Demonstrate an understanding of how the parent’s act or acts of domestic violence harmed the family.

   (d) Prove that the treatment program addressed and helped reduce any tendency to minimize or rationalize the act or acts of domestic violence.

5. Evaluate whether a parent’s chosen treatment program was relevant and proportionate to that person’s history of domestic violence. In making this evaluation, the court shall consider the criteria outlined in the Arizona Administrative Code that governs treatment standards for misdemeanor domestic violence offenders.

Read the list together and the design becomes clear. The rebuttal is not satisfied by producing a document. It is satisfied by surviving an analysis the court is required to perform, item by item, using the court’s own findings about what the parent did. And under A.R.S. § 25-403.03(B) that analysis has to appear in the court’s written findings, where the legal sufficiency of each finding and explanation is reviewed de novo on appeal.

Why this matters for your case

The standard of evidence is not a technicality. It decides how much you have to prove and how much the other side has to prove. Under the Alec and Lydia Act, a survivor establishes domestic violence by the ordinary civil standard, without needing corroboration. The parent who committed the violence then has to satisfy an analysis the court is required to perform and to write down, using the court’s own findings about how severe the abuse was. Not a document. Not a class. An analysis. That is a meaningful shift in favor of safety.

Tali Best Collins handles every new client consultation personally. If domestic violence is part of your family law case you do not need to have it figured out before you call. You need your story. That is where we start.