The enacted Alec and Lydia Act sets a standard of proof for establishing domestic violence and separate standards for rebutting the presumption that follows. This article explains how each one works and where it comes from in the statute.

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%. Both appear in the Alec and Lydia Act. Domestic violence is proved by a preponderance of the evidence. Rebutting the presumption that follows takes clear and convincing evidence for legal decision-making and unsupervised parenting time, and a preponderance of the evidence for supervised parenting time. 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 each has its own standard of proof

Most people assume a case has a single burden of proof. The Alec and Lydia Act does not work that way. It asks two separate questions and answers them differently. The first question is whether domestic violence happened, and it is decided by a preponderance of the evidence. The second question is whether the parent who committed the domestic violence has rebutted the presumption that follows. That question carries its own standard, and which standard applies depends on what the parent is asking the court for. The Act also tells the court what it must consider in reaching that decision. 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 domestic violence claim shall be established by a preponderance of the evidence. Corroboration from exhibits or witness testimony of another person is not required. Subject to the evidentiary standard in effect for that proceeding, the court shall consider all of the following:

1. Factual determinations related to 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 and any separate right to confidentiality under state or federal law.
4. Records from a shelter for victims of domestic violence as defined in section 36-3001, if the victim provides informed written consent.
5. Educational and school records.
6. Other acts of domestic violence against any person that tend to prove the existence of coercive control, even if those other acts have been decided, predate the last decree or could have been litigated at another time or place.
7. Witness testimony.

What a Finding of Domestic Violence Sets in Motion

Once a court determines 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 to prove that the domestic violence was severe or frequent enough to justify restricting that parent's legal decision making or parenting time.

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(D)

If the court determines that a parent has committed domestic violence, there is a mandatory rebuttable presumption that an award of legal decision-making or parenting time to that parent is contrary to the child's best interests. The court may not do either of the following: 1. Require the victim to prove that the domestic violence was severe or frequent enough to justify restricting the legal decision-making or parenting time of the parent who committed domestic violence. 2. Describe the parents' domestic violence as mutual or apply the presumption of this subsection to both parents, unless both parents lacked justification for their domestic violence to a similar degree and inflicted similar injury. The court shall otherwise apply the presumption only to the parent whose conduct and motivation were more serious under the definition of domestic violence.

How the Court Decides Whether the Presumption Has Been Rebutted

This is the part most worth understanding. The statute does two things at once. It assigns a standard of proof that depends on the relief the parent is asking for, and it sets out the factors the court must consider in deciding whether that standard has been met.

The court must consider the severity and frequency of the parent's domestic violence against any person, including whether it was aggravated by physical injury or emotional trauma, use or threatened use of a firearm or other dangerous weapon, strangulation, or multiple forms of coercive control. It must consider the extent to which the parent denied, deflected or minimized the domestic violence during treatment, forensic assessment, mandatory disclosure, formal discovery or courtroom proceedings. It must consider whether the domestic violence was committed with sufficient severity or frequency that the passage of time is not a mitigating factor. And it must consider whether the child has imitated any aspect of the parent's domestic violence behaviors.

Three arguments are off the table entirely. The child's absence from the scene of the domestic violence, the child's unawareness that it occurred, and the child's preference for reinstating, maintaining or increasing contact with that parent are all irrelevant to the mandatory presumption.

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 any domestic violence for which credible evidence is presented, demonstrate an understanding of how the domestic violence harmed the child and the other parent, and prove that the program addressed and helped reduce any tendency to minimize or rationalize it.

A.R.S. § 25-403.03(E)

If a parent who committed domestic violence seeks to rebut the mandatory presumption imposed by subsection D of this section, the court shall consider all of the following:

1. The severity and frequency of the parent's domestic violence against any person, including an assessment of whether that violence was aggravated by any of the following:

   (a) Physical injury or emotional trauma.

   (b) Use or threatened use of a firearm or other dangerous weapon.

   (c) Strangulation as described in section 13-1204, subsection B, paragraph 1.

   (d) Multiple forms of coercive control.

2. The extent to which the parent denied, deflected or minimized the domestic violence during treatment, forensic assessment, mandatory disclosure, formal discovery or courtroom proceedings.
3. Whether the parent committed domestic violence with sufficient severity or frequency that the passage of time is not a mitigating factor.
4. Whether the child has imitated any aspect of the parent's domestic violence behaviors.
5. 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 certificate of completion must be accompanied by all of the following:

   (a) A waiver of the statutory privilege or other confidentiality necessary to release that person's treatment records to the court and the victim.

   (b) Proof that the treatment program was both relevant and proportionate to any domestic violence for which credible evidence is presented, taking into account the criteria that are outlined in the Arizona Administrative Code for the treatment of misdemeanor domestic violence offenders.

   (c) A demonstrated understanding of how the parent's domestic violence harmed the child and other parent.

   (d) Proof that the treatment program addressed and helped reduce any tendency to minimize or rationalize the parent's domestic violence.

A.R.S. § 25-403.03(G)

The court may not grant any of the following to a parent who is restricted by the mandatory presumption imposed by subsection D of this section: 1. Sole legal decision-making or joint legal decision-making, unless the parent overcomes the presumption by clear and convincing evidence. 2. Unsupervised parenting time, unless the parent overcomes the presumption by clear and convincing evidence. 3. Supervised parenting time, unless the parent overcomes the presumption by a preponderance of the evidence.

Read the two subsections together and the design becomes clear. The rebuttal is not satisfied by producing a document. It is satisfied by meeting the standard that applies to the relief sought, on a record the court has to work through factor by factor. And under A.R.S. § 25-403.03(B) that analysis has to appear in the court's written findings.

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 carries the heavier burden: clear and convincing evidence to be granted legal decision-making or unsupervised parenting time, and a preponderance of the evidence even for supervised parenting time. 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.