How Domestic Violence Affects Child Custody in Arizona

Learn about domestic violence and how it impacts child custody in Arizona.

By , J.D. · University of Minnesota School of Law
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Domestic violence has the potential to harm adults and children in physical, mental, emotional, and economic ways. It even affects child custody orders.

This article will explain what domestic violence is and how it affects child custody in Arizona. If you have any questions after you read this article, consult a family law attorney for advice.

Domestic Violence Overview

People who have been victimized by domestic violence often don't believe they're really victims unless they have the scars and marks to prove it. They may not take advantage of services designed to help them. But Arizona's laws provide that a variety of conduct qualifies as domestic violence:

  • sexually assaulting or causing serious physical injury to a family or household member
  • attempting to sexually assault or cause serious physical injury to a family or household member
  • making family or household members afraid that they are about to suffer immediate physical injury, and
  • engaging in a pattern of abusive behaviors that are serious enough to permit a court to issue a protective order for the victimized parent or child.

Acts that qualify as domestic violence include physical assault, threats, harassment, intimidation, stalking, unlawful imprisonment, trespassing, damage to property, kidnapping, and photographing and secretly watching victims without their consent, among other things. Abuse can be electronic (e.g., internet-based), telephonic, written, or personal.

Family and household members are targeted for protection under the law. They include:

  • current and former spouses
  • people who live together or used to live together
  • people who have a child together
  • relationships in which one of the partners is pregnant with the other partner's child
  • people who are related by blood or marriage
  • children, and
  • people who are or were formerly in a romantic or sexual relationship.

There is frequently a question about what qualifies as a romantic or sexual relationship. To resolve the issue, judges look at four factors:

  • the nature of the relationship
  • the length of the relationship
  • how frequently the partners interacted with each other, and
  • if the relationship has ended, the length of time that has passed.

If you're a victim of domestic violence, you can go to court and ask for a domestic abuse protection order. To learn how, see this information , which includes the forms you'll need to complete, from the Arizona Judicial Branch.

Community Resources

Arizona provides a number of services for victims of domestic violence. A New Leaf, a non-profit, provides a comprehensive listing of organizations that offer direct services, like shelter-based housing, counseling, and case management. The Arizona Coalition to End Sexual and Domestic Violence , also a non-profit, lists more information and resources for victims.

On the governmental side, the Arizona Department of Economic Security has a Domestic Violence Program that can assist victims and the Arizona Department of Health Services has written a fact sheet, including hotline numbers, for those who have suffered abuse.

Victims can also call the National Domestic Violence Hotline at 1-800799-7233. It's available 24 hours a day, seven days a week.

Domestic Abuse and Child Custody

There are two kinds of custody: legal and physical. Physical custody involves the place where a child lives and receives basic daily care, like feeding and bathing. Legal involves a parent's right to make important decisions for a child about things like health and education.

Judges must consider at least eleven factors to determine the best interests of a child and decide who should have custody. For more information about how courts generally make these decisions, see Child Custody in Arizona: The Best Interests of the Child. Two of the factors directly involve domestic violence:

  • whether there has been domestic violence or child abuse, and
  • whether either parent was convicted of falsely reporting child abuse or neglect.

Arizona courts view evidence of domestic violence as contrary to the best interests of the child. This means that a parent who has committed domestic violence is less likely to get custody. In fact, if domestic violence has occurred, parents can't share joint legal custody.

Judges are required to make the safety of the child and the victim the top priority in the case, and to consider a perpetrator's history of making threats or causing harm to others. But first, they must decide whether it's more likely than not that abuse ever occurred. To do so, courts examine:

  • rulings from other courts
  • police reports
  • medical reports
  • child protective services reports
  • domestic violence shelter records
  • school records, and
  • witness testimony.

If, after examining the evidence, the court finds that a parent committed acts of domestic violence against the other parent, then the court must apply a "rebuttable presumption" (a legal assumption) that giving custody to the abuser is not in the child's best interests. The judge can only rule that the perpetrator has defeated that presumption by looking at all the following factors:

  • whether the perpetrator proved that being awarded sole or joint custody is in the child's best interests
  • whether the perpetrator successfully completed a batterer's prevention program
  • in cases where substance is a problem, whether the perpetrator successfully completed alcohol or drug abuse counseling ordered by the court
  • whether the perpetrator successfully completed parenting classes ordered by the court
  • in cases where the perpetrator is on parole, probation, or community supervision, whether the perpetrator is no longer subject to a domestic violence protective order, and
  • whether the perpetrator has committed additional acts of domestic violence against anyone else.

Impact on Visitation

If the judge finds that there was domestic violence, then the court's top priority is to protect the victimized parent or child from potential harm. The abusive parent can't be awarded "parenting time" (Arizona's term for visitation) until that parent convinces the judge that parenting time won't endanger the child or impair the child's emotional development. Even if the court agrees, it has to protect the child and the other parent from danger, and can:

  • order that parenting time exchanges occur in a protected setting (example: a police station lobby)
  • order that a state agency be responsible for supervising parenting time
  • allow another family or household member to supervise parenting time under specified conditions
  • order the abusive parent to abstain from possessing or consuming drugs or alcohol during parenting time or for the 24 hours immediately preceding it
  • ban overnight visits
  • require the abusive parent to pay a bond to ensure the child's safe return
  • ensure that the address of the child and the other parent remain confidential
  • make the abusive parent pay for any costs associated with parenting time, and
  • establish any other condition necessary to secure everyone's safety.

Termination of Parental Rights

In very serious cases where there is a pattern and history of child abuse, a relative, foster parent, physician, licensed welfare agency, or the Arizona Department of Economic Security can file a petition asking the court to terminate a parent's rights. Termination of parental rights means that a parent loses all rights to both the physical and legal custody of a child.

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