Parent Violated Arizona Order of Protection with Domestic Violence By Video Chat
In 2015, the Arizona court entered an order of protection preventing contact and threats or acts of domestic violence by defendant-parent against the custodial parent. Before that order expired, the victim petitioned for a 2016 ex parte order of protection. Upon hearing the petition, defendant was found to have violated the 2015 order by act of domestic violence in contacting the victim via online chat session. This violation formed the basis of the 2016 protective order. Affirmed on appeal.
In 2015, the parties were divorced in the State of Georgia. As the father, Vakharwala was awarded parenting time with their minor child. Later that year, Shah relocated to Arizona with her son. In November 2015, she obtained an Arizona order of protection against her former spouse who had remained in Georgia.
The protective order prohibited Vakharwala from having any direct contact with Shah, but he could contact her attorney. All communication from Vakharwala to Shah was restricted “except through attorneys, legal process, court hearings, and … in writing by U.S. Mail only to discuss the parties’ son.” The Georgia court amended its divorce decree to include the same “no contact terms” found in the Arizona order of protection, but still allowed the father parenting time access to the child. Vakharwala was granted restricted e-visitation with his son using online video chat sessions. He violated the protective order, however, via video chat to his ex-wife.
Because an order of protection expires one year after being served on the defendant, in November 2016 Shah petitioned for another ex parte order. This was granted with the same contact restrictions continued. Her verified petition alleged how three incidents of defendant’s domestic violence violated the 2015 protective order:
November 2015: Defendant was charged with assault after physically removing his son from Shah and attempting to take the child out of Arizona.
June 2016: Defendant contacted Shah by video chat when he was in Georgia and she was on business in Amsterdam.
2015 – 2016: On 15 separate occasions over a 12-month period, defendant contacted Arizona law enforcement alleging Shah’s “custodial interference” and her violation of court orders. All 15 allegations were determined by law enforcement to be unfounded.
The ex parte hearing gave the court reasonable cause to believe defendant committed an act of domestic violence under ARS § 13-3601(A) by “engaging in online contact” directly with Shah in the June 2016 video chat. The court’s domestic violence finding formed the basis for its 2016 protective order.
Chatting Against Order Was Act of Domestic Violence
Claiming the trial court abused its discretion, defendant appealed the protective order and offered several arguments supporting his appeal.
First, he argued the trial court lacked personal jurisdiction over him. And also lacked subject matter jurisdiction to prohibit conduct outside Arizona. The appeals court affirmed the trial court. Defendant waived personal jurisdiction by entering a general personal appearance and a court has subject matter jurisdiction to enforce its own orders. An act of domestic violence need not occur within the state’s boundaries for it to violate the Arizona order of protection. According to the appeals court, the trial court “had subject matter jurisdiction to issue the 2016 order based on Vakharwala’s violation of the 2015 order regardless of where the violation took place.”
Second, he argued the video chat was not directed at his ex-wife and, therefore, the trial court had insufficient evidence to support its finding the June 2016 video chat was an act of domestic violence. At the hearing, however, the victim offered screen shots of June 2016’s video chat and testified on how the contact was clearly directed at her. Holding no abuse of discretion, there was no mistaking the verbiage of defendant’s chat transmission as directed at Shah. (He chatted: “You also left the [ ] child alone without any notification and possibly have left the country without [ ] notice.”)
Third, he argued Rule 38(h) regarding protective orders was violated because the minute entry order did not specify any basis for “continuing, modifying, or revoking the protective order” as Rule 38(h) required. However, the Court of Appeals found no such violation where the trial court did state its basis for the order of protection “on the record.”
Lastly, he argued the trial court intimidated him out of testifying at the hearing by advising, at the outset, of potential firearm restrictions and immigration consequences should the protective order be affirmed. Holding such argument meritless, defendant waived the claim by not raising it at the trial level. The Court of Appeals affirmed the protective order, upholding the trial court’s final determination without modification.
Shah v. Vakharwala, 1 CA-CV 17-0129 FC (Ariz. Ct. App. Jan. 11, 2018)
For more information, see our discussion of domestic violence and protective orders in Arizona law.