Court of Appeals of Arizona, First Division, Department A
Appeal from the Superior Court in Maricopa County Cause No. FC2009-071535 The Honorable Jose S. Padilla, Judge.
Law Office of Scott E. Boehm, P.C. Phoenix by Scott E. Boehm and Hildebrand Law, P.C. Scottsdale by Christopher S. Hildebrand Cocounsel for Petitioner/Appellant.
Hymson Goldstein & Pantiliat, PLLC Scottsdale by Yvette D. Ansel Jennifer B. Rubin Attorneys for Respondent/Appellee.
PETER B. SWANN, Judge.
¶1 This is an appeal from the denial of a petition for modification of custody and relocation. We hold that when physical discipline of a child is at issue in a custody proceeding, the court must determine expressly whether the discipline rises to the level of domestic violence. And when domestic violence is found, A.R.S. § 25-403.03 requires that the court accord the issue "primary importance" and treat the evidence as contrary to the best interests of the child. We further hold that the family court may not rely exclusively on the testimony and report of a custody evaluator to make the findings necessary to support a decision concerning modification of custody and relocation of a child.
¶2 Father sought to relocate his children from their mother's residence in Arizona to his residence in Minnesota, alleging that Mother had allowed her husband ("Stepfather") to abuse the children. When a custody evaluator interviewed Stepfather, he admitted to several acts that could have constituted domestic violence against the children. But the court did not give the evidence of domestic violence the consideration required by A.R.S. § 25-403.03, and it did not independently decide the children's best interests under A.R.S. § 25-403. We therefore vacate the order denying Father's petition and remand for a new evidentiary hearing.
FACTS AND PROCEDURAL HISTORY
¶3 Mother and Father married in 1996 and together had two children, J. and R., in 1999 and 2002. In 2006, Father moved out of the family's Minnesota home, Mother and the children moved to Arizona, and Father filed a petition in the Minnesota district court for dissolution of the marriage. In 2008, the Minnesota court entered a decree of dissolution granting the parties joint legal custody of the children, awarding Mother sole physical custody, and ordering parenting time for Father. Mother married Stepfather shortly thereafter and domesticated the decree in Arizona the next year.
¶4 In February 2011, Father petitioned the Maricopa County Superior Court for temporary and permanent modification of custody of J. and R. Father alleged that a modification of custody was necessary because Mother had failed to protect J. and R. from Stepfather. Specifically, Father alleged that Stepfather had: choked and shoved J. against a wall; thrown J. into a bathtub and forced him to stand under a cold shower; forced J. to eat his own vomit; forced R. to sleep overnight in a bathtub; thrown water on R. and forced him to sleep in a wet bed; and intentionally struck R. with a shovel handle.
¶5 The court denied Father's petition for a temporary modification of custody, finding that the children were "not in serious danger or [imminent] risk of harm" and there was "no reason to change custody at this point without a full evidentiary hearing on the issues of modification." The court granted Father's motion to transfer jurisdiction to Maricopa County, and appointed a custody evaluator.
¶6 The custody evaluator interviewed Father, Mother, Stepfather, the children and others, and observed Father and Mother interact with the children. The custody evaluator authored an extensive report detailing the interviews and her observations.
¶7 The custody evaluator reported that J. and R. confirmed some version of many of the abusive episodes alleged in Father's petition. J. described two experiences: Stepfather using his arm on J.'s neck to push him against a wall after J. called him a name (after which Mother required J. to write a note stating that the incident did not occur), and Stepfather placing J. under a running shower after J. refused to kiss him. R. also described two experiences: Stepfather threatening to make R. eat regurgitated food, and Stepfather making him sleep in a bathtub one night after he wet the bed. R. further reported Stepfather using a hand to spank him and to pinch him on the back of the neck.
¶8 The custody evaluator reported that Stepfather admitted some version of several of the alleged incidents. First, Stepfather admitted that he had placed J. in a shower after J. had refused to hug him, made a vulgar statement to or about Mother, and refused to apologize. According to Stepfather, he turned the water on and off quickly over J., gave J. a towel, and spoke to him about what J. liked and disliked about both Arizona and Minnesota, where he had visited Father a few days before. Stepfather told the custody evaluator that he knew he acted inappropriately, had never before disciplined J. in this way, and did it because he did not know how to reach J. Second, Stepfather admitted that he had told R. that his bed would be made in the bathtub if R.'s incontinence problems continued, and one evening R. was required to stay in the bathtub, with towels and blankets and with Mother in the bathroom, for about twenty minutes. Third, Stepfather admitted that he had once tossed a lidded cup of water to R. after R. threw the cup on the ground, and R. had complained that the water got on his pajamas. Fourth, Stepfather admitted that he had tapped R. on the head with a shovel handle, after R. accidentally hit J. with a shovel handle and laughed when J. cried. Stepfather also disclosed that since Father filed his petition, Stepfather had helped Mother treat a blemish on R.'s face by holding R.'s hands together when he refused to stay still.
¶9 The custody evaluator found that Stepfather's "style of parenting/disciplining the children" was "concerning" and was "certainly viewed by the children as frightening and intimidating, " and that Mother had allowed the "questionable" behavior. The custody evaluator noted in her report that Child Protective Services ("CPS") had investigated many of the incidents she discussed with the family, and that though CPS had closed the case as unsubstantiated, the case manager had voiced concerns about Stepfather's parenting techniques and had recommended that Stepfather and Mother attend parenting classes. She was further concerned that Father had been ordered to counseling in the past; and also that he might be ...