Mother’s Petition for Child Custody Modification Resulted in Award of Sole Legal Decision-Making to Father

Categories: Child Custody

Mother filed her petition for modified custody in compliance with Arizona law. Father did not file a petition for modification, but motioned for temporary orders requesting he be awarded sole legal custody. The court granted father’s motion for sole legal decision-making. Affirmed on appeal, the mother’s interpretation of Arizona custody modification law and procedure was rejected. The appeals court found neither error nor prejudice by the trial court.


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Mother’s petition for Arizona child custody modification resulted in father being awarded legal decision-making

Jessica A. Sundstrom v. Jamie Flatt

The parties had two young children when they divorced in 2008. By consent decree they shared equal parenting time with the mother awarded sole legal decision-making. In the latter part of 2014, the mother petitioned for modified custody orders requesting that:

  • She continue to have sole legal decision-making; and
  • Father’s parenting time be supervised or reduced.

(Note: Arizona Child Support Guidelines apply to determine parents’ child support obligations under modified custody orders.)

During custody modification proceedings, the father motioned for temporary orders seeking sole legal decision-making authority. Proceedings regarding interim custody changes were “protracted.” When the court set a final hearing date on mother’s petition, the father filed his pretrial statement in which he requested sole legal decision-making for the two minor children. His request was granted.

The mother appealed, claiming the trial court erred in granting father’s request to modify custody when he had failed to file his own post-decree petition according to Arizona law, either ARFLP Rule 91 or ARS § 25-411. Additionally, the mother claimed she was prejudiced in not having opportunity to respond to father’s request.

Requirements for Modifying Legal Decision-Making

Before the court can modify legal decision-making, both ARS § 25-411 and ARFLP Rule 91(D) must be complied with. ARS § 25-411(L) provides in pertinent part that the person requesting to “modify any type of legal decision-making” has to “submit an affidavit or verified petition setting forth detailed facts supporting the requested modification” and provide notice to the other party (who may then file opposing affidavits). ARFLP Rule 91(D)(1) requires the person seeking modified legal decision-making file a petition that is either verified by the moving party or is supported by affidavit per ARS § 25-411. And with notice provided to the other party.

Motion to Dismiss Is Discretionary with the Court

Mother claimed father’s pretrial request should not have been considered because he did not file a petition in compliance with ARS § 25-411 and ARFLP Rule 91. During the evidentiary hearing, she moved to withdraw her original petition and dismiss the proceedings entirely (preventing, presumably, an award of sole custody to the other parent). The court denied mother’s motion to dismiss. In Arizona, dismissal is within the discretion of the family court. Furthermore, the mother failed to file Notice of Dismissal as required by ARFLP Rule 46(A) which states:

Voluntary. Any family law case or post-decree petition may be dismissed (1) by the petitioner or the filing party without order of court by filing a notice of dismissal at any time before filing of a response, or (2) by order of the court pursuant to a stipulation of dismissal signed by all parties who have appeared in the action. If a response has been filed to a petition or post-decree petition, the petition may be dismissed by the petitioner or the filing party only by motion and upon such terms and conditions as the court deems proper, including proper adjudication of any pending counterclaims or counter petitions filed by an opposing party. Unless otherwise stated in the notice or order of dismissal, the dismissal is without prejudice.

After final hearing on custody modification, the court awarded sole legal decision-making to the children’s Dad, allowing him to also amend his pleadings pursuant to ARFLP Rule 34(B) regarding amending pleadings to conform to the evidence. Also, the family court found that it “had the authority to modify legal decision-making because Mother had filed a petition that complied with [ARFLP] Rule 91(D).”

Mother’s Construct of Arizona Law Incorrect

On review, the Arizona Court of Appeals found neither error by the trial court nor prejudice to the mother’s case. Affirming the family court’s ruling, the appeals court disagreed with mother’s construction of ARS § 25-411 and ARFLP Rule 91(D).

Although the statute and rule require the person file a petition to modify legal decision-making before the court can issue those orders, Arizona law does not require that the person “ultimately granted legal decision-making” be the same individual who “originally petitioned the court.” It is illogical that a trial court could only be allowed to rule in favor of the petitioner. For this would mean requiring “both parents file petitions to allow the court to grant either party legal decision-making.”

The proper interpretation is as follows: Once a person has filed a petition to modify legal decision-making and there is “adequate cause for a hearing,” the petitioner must be prepared for the court to view the evidence as it deems fit, favorably or unfavorably to petitioner’s case. In this instance, mother’s petition properly complied with ARS § 25-411 and ARFLP Rule 9(D). Thereafter, the father’s request for “sole legal decision-making to him in the motion for temporary orders and his pretrial statement” provided sufficient notice to mother.

Mother’s case was not prejudiced for lack of notice and insufficient opportunity to respond. As the party who originally petitioned for modified custody, she “had notice the issue would be resolved.” Likewise, she had notice of the other parent’s intent to argue he should be awarded sole legal custody at the final hearing on his “motion for temporary orders and pretrial statement.” Mother’s opportunity to respond was in her pretrial statement and at the final hearing.

Sundstrom v. Flatt, 1 CA-CV 16-0567 FC (Ariz. Ct. App. Oct. 17, 2017)

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

To understand how legal decision-making and parenting time may be modified after divorce, read our discussion on how to go about Modifying the Terms of Your Divorce Orders.