Arizona Court of Appeals Division One Holds Award of Sole Custody Appropriate if Court Finds a History of Domestic Violence, but When Deciding Whether Parent May Relocate Children, the Court Must Make Specific Findings Regarding All Relevant Statutory Factors.

The Hurds were married and had three children.  Father allegedly abused Mother and the children.  In 2005, after the parties disputed the care of the children, Mother obtained an Order of Protection to prohibit Father from seeing the children.  Shortly after, Father petitioned for dissolution of the marriage and asked for joint custody of the three children.  Before the dispute was resolved, Mother lost her job, began living with the children in a shelter, and petitioned to relocate with the children to Wisconsin.  After a trial, the court found that there was a significant history of domestic violence, awarded sole legal custody to Mother, and granted her request to relocate to Wisconsin.  Father appealed.

In a unanimous opinion, the Arizona Court of Appeals affirmed the award of sole custody to Mother, but vacated and remanded the relocation finding.  Generally when custody is contested, A.R.S. § 25-403(A) requires a family court to consider on the record all of the statute’s enumerated factors relevant to the child’s best interest.  Father argued that the court abused its discretion by failing to make on-the-record determinations regarding some of the enumerated factors.  The Court of Appeals disagreed. The Court noted that under A.R.S. § 25-403.03(D), a finding of domestic violence creates a rebuttable presumption that joint custody is not in a child’s best interest.  Because the trial court found that there was domestic violence and “specifically found” that Father did not rebut the presumption against joint custody, the Court held that the trial court did not need to consider each enumerated factor from A.R.S. § 25-403(A).  Furthermore, although there was some conflicting evidence, the Court held that there was enough evidence to support the finding that there was a history of domestic violence.  Thus, the Court affirmed the award of sole custody.

Turning to the relocation decision, the Court held that the trial court failed to satisfy the duty to make findings regarding specific statutory factors related to the relocation and the children’s best interest.  Although the trial court discussed many of the factors on the record, it failed to make specific findings regarding several of them.  Most significantly to the Court, there was no finding regarding how the relocation would affect the needs of the children or their stability.  Thus, the Court of Appeals vacated the relocation decision and remanded the issue back to the trial court. 

Judge Orozco authored the unanimous opinion; Judges Johnsen and Weisberg concurred.