Under the Alec and Lydia Act, once the court finds domestic violence, the law presumes that giving the abusive parent legal decision-making or parenting time is contrary to your child's best interests. The burden shifts to the abusive parent to prove that they are safe to have parenting time with the children and safe to co-parent with the victim parent. There are two different analyses for these two different parenting rights. The court can make very specific orders for the abuser to have a chance of getting any legal decision making or unsupervised parenting time. If the abuser does not rebut the presumption of domestic violence, they will not have any decision making and only supervised parenting time. What is the pathway back for the abuser? Here is what the court can order the abuser to do:
The Court Can Order the Abusive Parent to Complete a Domestic Violence Intervention Program
What is a domestic violence intervention program? This is not anger management. This is not general therapy. It is a specific program for people who have committed domestic violence. The court must consider the standards Arizona uses for treating domestic violence offenders such as a qualified behavioral health professional and at least 26 sessions for a first offense (and more for repeat offenses). And the program cannot be mostly anger management or counseling. Anger management is not domestic violence. They are not the same issue. They should not be handled or considered the same treatment.
A class completion certificate from any program is not enough to rebut the presumption. The abuser must provide the court with all of the required details including the credentials of the experienced person leading the program. As the abused parent of the children you are entitled to get these program details.
What Other Counseling or Therapy Can the Court Order?
Separate from a domestic violence treatment program, the court can order other counseling or therapy it decides is appropriate. This is where you can be useful. You know the abuser better than anyone else in that courtroom. I always like the idea of giving a judge solutions and this is one area where you can suggest solutions for the court and provide some details. For instance, if you know the abusive parent has been seeing a psychiatrist or a trauma informed counselor you might suggest them to the court if they have been helpful in the past.
Please know this: the court cannot order you or your child into treatment or counseling with the person who abused you. Arizona now prohibits joint counseling between the abuser and the victim or the child. That matters because for years courts treated domestic violence cases as if they were a co-parenting problem, as though both parents were each at fault.
Domestic violence is not a co-parenting conflict. It is not a high conflict divorce. It is an abuser who makes co-parenting with the victim impossible. It is not the victim’s fault. Judges have said more than once that it “takes two to tango.” I don’t even know what that means in the domestic violence world but it minimizes the dangerous dynamics and ignores the victim’s trauma.
Can the Court Order Drug and Alcohol Testing for the Abuser?
Yes, if the court finds that the abuser has also abused alcohol or drugs, it can order them to stop drinking or using drugs, even if they are legal. That order is not limited to their parenting time. It applies generally and random testing can be ordered.
Clients often ask how to prove that the abuser was or is abusing drugs or alcohol. Sometimes the abuser will just admit it, because they do not think it is a problem. Often you can simply testify. You might recall the night they threw chairs in the pool while drunk. The night they fell down drunk and hurt themselves. The names they called you in front of other people. Most abused parents have dozens of these stories and they are evidence without a photo or police report. And, if the abuser refuses a drug test or misses one, that can be treated as a positive test result. A positive drug test usually starts the testing all over from day one. It is also contrary to unsupervised parenting time.
Can the Court Require a Bond for Your Child's Safe Return?
The court can require a parent to post a bond guaranteeing that the child is returned home from parenting time. This matters when there have been threats to take the children or to leave the state or the country. Some parents might not be able to afford a bond or they might have to use their home for collateral. The statute does not suggest the amount of the bond but I have seen them in the $50,000 to $100,000 range when there is an international flight risk.
How Do These Safeguards Help the Victim Parent?
You will be able to make these suggestions to the court now that you are aware of them. You know your rights and ability to collect the evidence such as therapy, medical or program details. You might have some ideas or explain why a certain therapist or counselor should be ordered. You will also have the best idea about the drug and alcohol issue. Random testing is very helpful for these cases because the tests are hard to fool and the random nature of the testing makes it hard to game. You are in a stronger position because you know the abuser and how they will attempt to trick the system and you can ask for safeguards to prevent them from skirting the law.
The Alec and Lydia Act gave the court real tools to hold an abusive parent accountable and it gives you the ability to ask for them. Just know that child safety is now the public policy in the State of Arizona and it is more important than parental access to children. This Act was written to help keep you and your children safe but you must understand it to use and make your case to the court. We can help and you are not alone.