Arizona Court of Appeals held the family court has statutory authority to modify an order of protection when terms may conflict with the court’s parenting orders in divorce or child custody proceedings. But only to the degree the family court is satisfied the modified order of protection and party’s request for parenting time will not endanger the child or significantly impair that child’s emotional development.
Josephina Courtney v. Superior Court in and for Maricopa County
Family court in Arizona has “statutory authority to modify the protective order if the court is satisfied that parenting time would not endanger the child or significantly impair the child’s emotional development.”
Father Obtained Protective Order Limiting Mother’s Parenting Time
Sixteen years after they married, the father obtained an ex parte order of protection (OOP) against the mother in January 2014 from the Tolleson Municipal Court in Maricopa County. Their daughter and an only minor child was the protected person. Although affirmed, the OOP was amended by the city court to allow the mother limited contact with her daughter via email or regular mail.
In filing for divorce in February 2014, the mother requested temporary parenting time despite the OOP which orders was transferred to superior court for the divorce proceedings. The superior court (or family court) held an evidentiary hearing on the issue of amending the protective order to allow parenting time. The family court denied the motion for interim parenting time after determining it lacked legal authority (or jurisdiction) to modify the municipal court’s OOP. The family court concluded that the “statute and the rule do not allow [a party] under an order of protection to use a subsequent family court legal decision-making request to circumvent an order of protection.”
Arizona Special Action Over Denied Interim Parenting Time
The mother petitioned the Arizona Court of Appeals. Exercising discretion on a matter of first impression on a purely legal question of statewide importance and given there was “no equally plain, speedy, and adequate remedy by appeal” from the family court’s ruling on temporary orders, the court accepted special action jurisdiction.
Relief granted. The court held that superior courts in Arizona divorce and family law cases have inherent authority to modify protective orders that may conflict with parenting time orders. In this instance, the family court had “statutory authority to modify the protective order if the court is satisfied that parenting time would not endanger the child or significantly impair the child’s emotional development.”
The court emphasized the superior court’s original jurisdiction to hear and decide child custody along with all other matters relating to the divorce. Citing ARS §25-311 and Pflum v. Pflum, 135 Ariz. 304, 660 P2d 1231 (Ariz. Ct. App. 1982). And the family court’s authority to enter temporary orders pursuant to ARS § 25-404(A) even when the party requesting parenting time committed an act of domestic violence, sometimes demonstrated by protective order. ARS § 13-3602(P) specifically authorizes handling the protective order “as though the petition for an [OOP] had been originally brought in the superior court” – that is, the family law judge should handle the protective order as though he or she entered it. Furthermore, the “court that issues an order has the inherent authority to modify its order.” Citing Arpaio v. Baca, 217 Ariz. 570, 177 P3d 312 (Ariz. Ct. App. 2008).
Parent’s Act of Domestic Violence
Under ARS § 25-403.03(F), a family law judge who finds the parent committed domestic violence must first be satisfied that “parenting time will not endanger the child or significantly impair the child’s emotional development,” whether or not a protective order exists. If the parent carries this burden of proof, then the court may add whatever conditions it deems appropriate and necessary under the circumstances, such as require supervised parenting time, exchanges in protected settings, or prohibit overnight stays.
Finally, Arizona’s rules for protective orders recognize the “primacy of the superior court in custody and parenting time matters” and prevent any protective order from containing legal issues over custody, parenting time, or divorce. See Ariz. R. Prot. Ord. P. 4(B)(1).
The family court must hear and decide whether the mother carried her burden of proving parenting time would not endanger her daughter or significantly impair her child’s emotional development. If that burden is met, then the judge may modify the OOP and “adopt any appropriate conditions.”
Courtney v. Hon. G.H. Foster, Jr., Superior Court in and for Maricopa County, 235 Ariz. 613, 334 P3d 1272 (Ariz. Ct. App. 2014)
For precise language, please read the court’s original opinion. Legal citations have been omitted.
To learn what legal decision-making and parenting time is all about, visit www.ArizonaLawGroup.com. Be sure to read our discussion about parenting plans in Arizona divorce and child custody proceedings.