Child Custody Attorney | Visitation Lawyer | Stewart Law Group | Due Process Lawyer in Arizona

Modified Child Custody Order Violated Parent’s Due Process Rights

In this child custody case, a modified custody order violated due process by exceeding the scope of hearing on father’s motion to end mother’s supervised parenting time; custody order vacated and matter remanded in Arizona case summary. If you’re experiencing a similar situation, call an experienced due process violation attorney in Arizona.

Do you need help with a child custody matter? Call us today 602-548-3400

Laura Cruz v. Robert Garcia, Jr.

The one child was born in August 2001 to unmarried parents. A special action by the State of Arizona established child support. The mother was awarded legal custody in 2006 and, the following year, the father was granted six hours parenting time every other week. In 2008, his parenting time was increased to one overnight every other weekend.

In May 2013, the father petitioned for joint legal decision-making and equal parenting time. Later that month, the mother was arrested on suspicion of narcotics and drug paraphernalia after police seized cocaine from her home (charges later dropped). Father subsequently amended his petition to seek sole legal decision-making with suspension of mother’s parenting time.

The hearing on father’s motion was scheduled for February 2014, but in January the parties stipulated (ARFLP Rule 69 agreement) to father’s getting sole legal decision-making authority and designation as primary residential parent.

In January 2015, the mother petitioned to vacate the Rule 69 agreement and restore legal decision-making and parenting time to her. She expressly requested an evidentiary hearing on the matter. A trial date was set for August 2015. But on June 2, father petitioned to modify one term of the parties’ Rule 69 agreement: to immediately halt mother’s supervised parenting time in the child’s best interests, alleging it was “extremely detrimental to the emotional health” of their child.

The hearing on father’s motion was held June 24, 2015. The court suspended mother’s parenting time finding that it would “seriously endanger [child’s] mental and emotional health.” The court’s modified parenting time order was final and appealable. Furthermore, the court denied all other pending motions and vacated the August trial date. In chambers two days later, the family court made ARS § 25-403(B) factual findings on the record; and ordered sole legal decision-making and primary residential parent status to the father. The mother appealed on due process grounds.

Arizona Court Denied Parents Due Process

The Arizona Court of Appeals held that the trial court had denied the mother due process by issuing a final ruling on custody and parenting time without proper notice and an evidentiary hearing on those issues.

Due Process Clause: 14th Amendment of U.S. Constitution

The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution safeguards parents’ fundamental liberty interest in their children’s care, custody, and management. The trial court did not give these parents an opportunity to be heard at a meaningful time, in a meaningful manner on the issue of legal decision-making authority. Due process requires that parties be allowed to present evidence when a disputed issue of fact is the child’s best interests.

In vacating the trial court’s final modified custody order, the appellate court stated that, because custody determinations rest upon the child’s best interests, both parents must have time to prepare and present all relevant evidence. The June 24 hearing was to be on father’s motion to suspend mother’s supervised parenting time, not more. The parents had no notice that legal decision-making was at issue in the hearing. Plus the August trial over custody and parenting time was still on the court’s docket. The trial court’s judgment in this case was rendered without procedural due process. A “family law judgment rendered without notice and a meaningful opportunity to be heard cannot stand.”

Additionally, the trial court’s ARS § 25-403(B) findings were largely based on “documents not admitted in evidence or subjected to adversary testing.” The parties had no notice that the court would be determining legal custody at the hearing and no meaningful opportunity to be heard on that issue. Therefore, the court’s ruling did not comport with due process.

Mother Did Not Waive Due Process Claim

Mother did not waive her due process claim by failing to object on this basis to the court below. She had no real opportunity to raise this constitutional objection because the court did not release its ARS § 25-403(B) findings until two days after the hearing. Only then was mother put on notice of the modified permanent custody order.

Court Could Not Revoke Parenting Time on Its Own Motion

Contrary to father’s argument, ARS § 25-411(J) did not broadly permit the court to revoke mother’s parenting time sua sponte, on its own motion. Notice and an opportunity to be heard are still required with allegations that parenting time would endanger the child’s physical, mental, moral, or emotional health. Instead, the court’s authority to restrict parenting time sua sponte per § 25-411(J) is limited to placing conditions on parenting time (for example, requiring supervision or limits on time and location).

In holding that mother’s due process rights were denied, the Arizona Court of Appeals vacated the trial court’s June 24, 2015, minute entry and its June 26 in-chambers findings. The case was remanded for an evidentiary hearing on custody issues of parenting time and legal decision-making.

Cruz v. Garcia, 2 CA-CV 2015-0174 (June 17, 2016)

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

To learn more about child custody, legal decision-making, parenting time, and parenting plans in Arizona family law, sign up for our FREE e-Custody Course.

If you want to speak to a due process violation lawyer, call the Stewart Law Group today.