Domestic Violence Basis for Modifying Rule 69 Agreement on Arizona Custody

Categories: Child Custody, Domestic Violence

Rule 69 agreement for joint legal decision-making and parenting time was approved and adopted by the court in this Arizona divorce. Once adopted, Rule 69 agreements are binding and must be included in the final decree. Specific findings of substantial domestic violence acts occurring after the agreement was adopted but before the decree is entered could form a limited basis for modification. Vacated in part and remanded.

image of man, woman, baby

Rule 69 agreement for joint custody was approved and adopted by the court, but didn’t make it to the decree.

Dana J. Engstrom and James McCarthy (2018)

Pretrial Resolution Management Conference Resulted in Rule 69 Agreement

The mother and father in this child custody case participated in a pretrial resolution management conference. They entered into a valid Rule 69 agreement for joint legal decision-making authority and parenting time which was approved and adopted by the court. Although the agreement was binding and permanent, the court did not use it in the divorce decree and did not explain in the record its reasons for modifying the agreement. The court modified the custody agreement, awarding the mother sole legal decision-making.

Both parents appealed the family court’s legal decision-making and parenting time orders. The Court of Appeals vacated in part and remanded for further proceedings consistent with its decision.

Among other things, the father argued that because the agreement was already approved and adopted by the court as an enforceable order, any custody modification required a showing of substantial and continuing change of circumstances. However, the mother argued the court had discretion to modify the custody agreement. The appeals court agreed with the father. The family court erred.

Different Arizona Laws for Different Purposes

Binding agreements and modification of custody orders fall under different laws. Rule 69(B) Arizona Rules of Family Law Procedure (ARFLP) controls these settlement agreements. Under ARS § 25-317(A), the parties’ separation agreement is “presumed to be valid and binding.” And ARS §25-317(D) gives the court discretion to reject the parties’ Rule 69 agreement if not reasonable as to support, custody, and parenting time of the children. No rule or statute gives the court power to modify the agreement after it has been adopted. Once determined reasonable, the court must include the agreement’s terms in the decree.

Motion Must Establish Cause for Custody Modification

The statute that empowers the court to modify child custody orders is ARS § 25-411. For the court to modify custody on motion of a party, it must initially determine whether the petition alleges the requisite “change of circumstances” since the last custody order. Citing Pridgeon v. Superior Court (LaMarca), 134 Ariz. 177 (1982). Or that something happened, “new facts presented, which were unknown to the applicant at the time the decree was entered.” Citing Burk v. Burk, 68 Ariz. 305 (1949), by contrast. This family court did not consider any changed circumstances, relying solely on ARS § 25-317 and Rule 69. No adequate cause for modification was established on the pleadings as required. In applying the wrong statute, the court failed to make the fact-intensive inquiry necessary to modify the custody order.

Revisit Domestic Violence Findings on Remand

The father argued that the court’s fact findings did not establish domestic violence under Arizona law. On remand, the Court of Appeals directed the family court to make specific domestic violence findings. The court included a “significant domestic violence” finding as its basis for not granting the father joint legal decision-making as set forth in the adopted Rule 69 agreement. Although the mother’s expert witness opined that father’s acts were domestic violence, that was not sufficient for a legal conclusion of domestic violence under ARS § 25-403.03(A,D) and § 13-3601.

            On remand:

“[W]e direct the family court to consider whether Father’s conduct, after entry of the order approving the Rule 69 agreement, amounted to domestic violence or ‘significant domestic violence’ by relying on the  13-3601(A) statutory definitions referenced in  25-403.03(A), and not on the expert’s own views. Similarly, if the court finds that Father committed ‘an act’ of domestic violence against Mother under § 25-403.03(D), the court should make appropriate factual findings by looking at the definitions of domestic violence under § 25-403.03(D)(1-3).”

[Emphasis added.]

Domestic Violence in Parenting Time Analysis

The mother argued that the family court erred in failing to make findings of domestic violence before awarding father parenting time. The appeals court agreed with her. ARS § 25-403.03(F) requires such findings in the parenting time analysis.

On remand, if the family court finds that acts of domestic violence committed after the parties’ Rule 69 agreement, then the court may have legal basis to modify the agreement as to parenting time. But only if the father does not carry his burden of proving that “parenting time will not endanger the child or significantly impair the child’s emotional development.” ARS § 25-403.03(F). Should the father meet his burden of proof, the court shall then place conditions on parenting time sufficient to protect the child and the other parent from additional harm. In the domestic violence analysis, the court must make specific findings explaining its reasons and conclusions.

Lastly, the family court did not abuse its discretion in allowing the father’s child custody evaluator to testify. The expert witness was a licensed psychologist, had undergone years of training, had served as an expert witness in many cases, was qualified, and provided his expert opinion based upon his interviews and analysis.

Engstrom v. McCarthy, 1 CA-CV 16-0689 FC (Ariz. App. Jan. 9, 2018)

For precise language, please read the court’s original opinion. Legal citations have been omitted.

Negotiating Rule 69 agreements is an important step in settling issues raised in Arizona divorce and family law proceedings. Valid Rule 69 agreements are binding. To learn more, listen to this Arizona Family Talk Radio podcast with attorney Scott David Stewart.


Please contact one of our domestic violence attorneys if you have any questions.