Legal Decision-Making Analysis for Domestic Violence

Cindy Best

Often, when a batterer was the perpetrator of significant domestic violence, he or she continues to pose a danger to the child(ren) and the spouse/ex-spouse. Thus, the Court should apply A.R.S. § 25-403.03. Under A.R.S. § 25-403.03(A), the batterer may not receive joint legal decision-making with the other parent. The Court of Appeals has interpreted this provision to mean the Court is precluded from awarding joint legal decision-making where significant domestic violence has occurred. See Hurd v. Hurd, 223 Ariz. 48, 51, 291 P.3d 258, 261 ¶ 12 (App. 2009).

Where the Court finds a history of significant domestic violence has not occurred, the Court, at a minimum, could find there have been acts of domestic violence. As such, the rebuttable presumption should be applied. The presumption is that awarding the batterer joint legal decision-making is not in the child(ren)’s best interests, and the batterer has the burden of rebutting that presumption. To determine whether the presumption can be rebutted, a Court is required to consider all the factors found in A.R.S. § 25-403.03(E).  Below, we lay out the analysis for determining legal decision-making when domestic violence has occurred.

Step One: Determine the Nature of the Domestic Violence.   

When it comes to legal decision-making, A.R.S. § 25-403.03 distinguishes between parents who have committed acts of domestic violence and parents who have a significant history of domestic violence. When do “acts of domestic violence” become a “significant history of domestic violence?” We do not know. No one tells us that. The Court of Appeals has held that “repeated acts” of domestic violence can support a court’s finding of a significant history of domestic violence.  Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 15, 219 P.3d 258, 262 (App. 2009). That is still a murky standard. We do not have any guidance on this point. But at some point, the acts become enough to become a significant history of domestic violence. Best Law Firm uses Dr. Jill Messing as an expert in domestic violence cases. In certain instances, a child’s counselor may also be allowed to testify at trial.

What happens if the Court finds a significant history of domestic violence? Then the matter is decided. The Court cannot award joint legal decision-making to a batterer who has a significant history of domestic violence. A.R.S. § 25-403.03 (A).

What happens if the Court finds there have been “acts of domestic violence” but does not rule that there was a “significant history” of domestic violence? Then the batterer must rebut the presumption. What’s the presumption? That awarding the batterer sole or joint legal decision-making is contrary to the children’s best interests. In deciding whether the parent has rebutted that presumption, the Court considers these factors found in A.R.S. § 25-403.03 (E):

A. Whether the parent has demonstrated that being awarded sole or joint legal decision-making or substantially equal parenting time is in the child’s best interests.

B. Whether the parent has successfully completed a batterer’s prevention program.

C. Whether the parent has successfully completed a program of alcohol or drug abuse counseling, if the court determines that counseling is appropriate.

D. Whether the parent has successfully completed a parenting class, if the court determines that a parenting class is appropriate.

E. If the parent is on probation, parole or community supervision, whether the parent is restrained by a protective order that was granted after a hearing.

F. Whether the parent has committed any further acts of domestic violence.

What happens if a parent rebuts the presumption? That parent is eligible to receive sole or joint legal decision-making.

Parenting Time Analysis for Domestic Violence

When parenting time is in dispute, and domestic violence or significant domestic violence has occurred, the Court must consider A.R.S. § 25-403.03 (F), which reads in relevant part:

If the court finds that a parent has committed an act of domestic violence, that parent has the burden of proving to the court’s satisfaction that parenting time will not endanger the child or significantly impair the child’s emotional development.

Again, this provision shifts the burden to the batterer. He or she must prove to the Court’s satisfaction that parenting time will not endanger the child(ren) or significantly impair the child(ren)’s emotional development. If he or she cannot do this, then supervised parenting time must be ordered. Unsupervised parenting time allows a batterer additional access points to “control” the abused spouse or ex-spouse, often the continued target for abuse. If these actions show the child is being negatively impacted by the batterer’s parenting time and that he or she is using access to the child(ren) to abuse the spouse/ex-spouse, the batterer is unable to rebut the presumption.

What happens if the batterer rebuts the presumption? Here, the path to 50-50 parenting time is not automatic. In fact, the Court must place conditions on the batterer’s parenting time. A.R.S. § 25-403 (F) reads in the relevant part, “If the parent meets this burden to the court’s satisfaction, the court shall place conditions on parenting time that best protect the child and the other parent from further harm.” A.R.S. § 25-403.03 (F) then lists what conditions the Court may apply

  1. Order that an exchange of the child must occur in a protected setting as specified by the court.
  2. Order that an agency specified by the court must supervise parenting time. If the court allows a family or household member to supervise parenting time, the court shall establish conditions that this person must follow during parenting time.
  3. Order the parent who committed the act of domestic violence to attend and complete, to the court’s satisfaction, a program of intervention for perpetrators of domestic violence and any other counseling the court orders.
  4. Order the parent who committed the act of domestic violence to abstain from possessing or consuming alcohol or controlled substances during parenting time and for twenty-four hours before parenting time.
  5. Order the parent who committed the act of domestic violence to pay a fee for the costs of supervised parenting time.
  6. Prohibit overnight parenting time.
  7. Require a bond from the parent who committed the act of domestic violence for the child’s safe return.
  8. Order that the address of the child and the other parent remain confidential.
  9. Impose any other condition that the court determines is necessary to protect the child, the other parent and any other family or household member.

The Court may apply as many of these options as it finds necessary. The Legislature also included an open option where the Court can apply any condition it believes necessary to protect the children, the battered spouse, and any other family member. The one thing the Court cannot do is nothing. The Court must place at least some conditions under A.R.S. § 25-403.03 (F).

A.R.S. § 25-403.03.

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