The Intersection Of Domestic Violence & Parenting Issues

Division I of the Arizona Court of Appeals recently released an opinion in Deluna v. Petitto that clarified the application of A.R.S. §25-403(A)(8) and §25-403.03 in cases where parenting time and legal decision-making authority are at issue. 

A.R.S. §25-403 outlines the factors that the court must consider when determining parenting time and legal decision-making authority.  One of the factors that must be considered is whether domestic violence occurred between the parties.  If the trial court determines that domestic violence did occur, further evaluation of that issue is needed and is governed by A.R.S. §25-403.03.

A.R.S. §25-403.03 requires the Court to determine (1) if significant domestic violence occurred pursuant to A.R.S. §13-2601, and (2) if there has been a significant history of domestic violence.  If the court determines that significant domestic violence occurred, or that there is a history of significant domestic violence, the perpetrator is not entitled to share joint legal decision-making authority.  If the court finds that domestic violence occurred, but does not believe that the violence was significant, then there is a rebuttable presumption that the perpetrator should not be awarded legal decision-making authority.  The presumption can be rebutted by showing evidence such as completion of anger management, domestic violence, and parenting classes, and the lack of further episodes of domestic violence.

The Deluna decision reiterated that an award of joint legal decision-making authority when the court finds significant domestic violence has occurred is impermissible.  A footnote in the case includes an analysis of the considerations the court should apply to determine if domestic violence was “significant” or not.  Those factors include the seriousness of the act of domestic violence alleged, the frequency of the domestic violence, and the passage of time and the effect of that time.  The decision further clarified that if the court finds that (1) domestic violence occurred, but was not significant, (2) and legal decision-making authority rights are awarded to the perpetrator, the court must make specific findings on how the presumption against the offender having legal decision-making authority was rebutted.

Similarly, when parenting time is at issue and there has been a finding that a parent has committed an act of domestic violence, A.R.S. §25-403.03(F) requires the court to make specific findings as to whether parenting time would endanger the child or impair the emotional development of the child.   If the court concludes that the child is not in danger, the court must explain the reasons and how the perpetrating parent showed the child would not be in danger.  The court also has the authority to order safeguards to protect the child while still facilitating the relationship with the offending parent. 

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