HB2995 - 572R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 25-403.03, Arizona Revised Statutes, is amended to read:

START_STATUTE25-403.03. Domestic violence and child abuse; court considerations; definitions

A. Notwithstanding subsection D of this section, joint legal decision-making shall not be awarded if the court makes a finding of the existence of significant domestic violence pursuant to section 13-3601 or if the court finds by a preponderance of the evidence that there has been a significant history of domestic violence.

B. The court shall consider evidence of domestic violence as being contrary to the best interests of the child. The court shall consider the safety and well-being of the child and of the victim of the act of domestic violence to be of primary importance. The court shall consider a perpetrator's history of causing or threatening to cause physical harm to another person.

C. To determine if a person has committed an act of domestic violence the court, subject to the rules of evidence, shall consider all relevant factors including the following:

1. Findings from another court of competent jurisdiction.

2. Police reports.

3. Medical reports.

4. Records of the department of child safety.

5. Domestic violence shelter records.

6. School records.

7. Witness testimony.

D. If the court determines that a parent who is seeking sole or joint legal decision-making has committed an act of domestic violence against the other parent, there is a rebuttable presumption that an award of sole or joint legal decision-making to the parent who committed the act of domestic violence is contrary to the child's best interests. This presumption does not apply if both parents have committed an act of domestic violence. For the purposes of this subsection, a person commits an act of domestic violence if that person does any of the following:

1. Intentionally, knowingly or recklessly causes or attempts to cause sexual assault or serious physical injury.

2. Places a person in reasonable apprehension of imminent serious physical injury to any person.

3. Engages in a pattern of behavior for which a court may issue an ex parte order to protect the other parent who is seeking child custody or to protect the child and the child's siblings.

E. To determine if the parent has rebutted the presumption the court shall consider all of the following:

1. Whether the parent has demonstrated that being awarded sole or joint legal decision-making or substantially equal parenting time is in the child's best interests.

2. Whether the parent has successfully completed a batterer's prevention program.

3. Whether the parent has successfully completed a program of alcohol or drug abuse counseling, if the court determines that counseling is appropriate.

4. Whether the parent has successfully completed a parenting class, if the court determines that a parenting class is appropriate.

5. If the parent is on probation, parole or community supervision, whether the parent is restrained by a protective order that was granted after a hearing.

6. Whether the parent has committed any further acts of domestic violence.

F. If the court finds that a parent has committed an act of domestic violence, that parent has the burden of proving to the court's satisfaction that parenting time will not endanger the child or significantly impair the child's emotional development. If the parent meets this burden to the court's satisfaction, the court shall place conditions on parenting time that best protect the child and the other parent from further harm. The court may:

1. Order that an exchange of the child must occur in a protected setting as specified by the court.

2. Order that an agency specified by the court must supervise parenting time. If the court allows a family or household member to supervise parenting time, the court shall establish conditions that this person must follow during parenting time.

3. Order the parent who committed the act of domestic violence to attend and complete, to the court's satisfaction, a program of intervention for perpetrators of domestic violence and any other counseling the court orders.

4. Order the parent who committed the act of domestic violence to abstain from possessing or consuming alcohol or controlled substances during parenting time and for twenty-four hours before parenting time.

5. Order the parent who committed the act of domestic violence to pay a fee for the costs of supervised parenting time.

6. Prohibit overnight parenting time.

7. Require a bond from the parent who committed the act of domestic violence for the child's safe return.

8. Order that the address of the child and the other parent remain confidential.

9. Impose any other condition that the court determines is necessary to protect the child, the other parent and any other family or household member.

G. The court shall not order joint counseling between a victim and the perpetrator of domestic violence. The court may provide a victim with written information about available community resources related to domestic violence.

A. In any legal decision-making or parenting time matter, The court shall consider domestic violence as contrary to the best interests of the child and shall assign primary importance to the safety and well-being of both the child and domestic violence victim. If an express or implied conflict arises between the requirements of this section and a competing presumption, mandate or public policy in this title, the provisions of this section take priority.

B. In any legal decision-making or parenting time matter, The court shall make specific and detailed findings on the record about each factor that is required by this section. The court shall explain in detail why the court's findings regarding domestic violence serve the child's best interests, including the presumption prescribed in subsection F of this section and any rebuttal to the presumption that is offered pursuant to subsection G of this section. On appeal, the legal sufficiency of each finding and explanation shall be reviewed de novo. The court's findings must address all of the following:

1. Coercive control.

2. Evidence that may support a domestic violence claim.

3. The impact, severity and circumstances of an act or acts of domestic violence that have occurred.

4. The mandatory presumption against awarding legal decision-making or parenting time to a parent who has committed an act or acts of domestic violence.

5. Whether a parent who has committed an act or acts of domestic violence rebutted the mandatory presumption under subsection F of this section.

C. A Claim of an act or acts of domestic violence shall be established by a preponderance of the evidence. corroboration from exhibits or witness testimony is not required. Subject to the evidentiary standard applied to that proceeding pursuant to the arizona rules of family law procedure, the court shall consider all of the following:

1. Factual determinations of an act or acts of domestic violence from a court of competent jurisdiction.

2. Evidence that is collected and reports THAT are prepared by a law enforcement agency, the department of child safety and any other government agency.

3. The alleged victim's medical or behavioral health records, if the victim waives the associated privilege or other right to confidentiality.

4. Records from a shelter for victims of domestic violence as defined in section 36-3001.

5. Educational and school records.

6. A collateral act or acts of domestic violence against any person by the parent who is the subject of the allegation of committing an act or acts of domestic violence.

7. Witness testimony.

D. If the court determines that a parent committed an act or acts of domestic violence, the court shall consider and weigh all of the following nonexclusive factors, and any other relevant considerations, when entering an award of legal decision-making, a parenting time schedule and other features of the parenting plan required by section 25-403.02. The court shall determine whether the act or acts of domestic violence meet any of the following:

1. Risked or inflicted physical injury or emotional trauma on the other parent or child.

2. Involved the threat or use of a firearm or other dangerous weapon.

3. Involved the threat or use of strangulation as described in section 13-1204, subsection B, paragraph 1.

4. Involved multiple forms of coercive control, including whether physical violence, no matter how infrequent, was used to intensify the impact of other forms of coercive control.

5. Compromised the victim's education, employment or career goals.

6. Significantly damaged the victim's reputation or relationships with family, friends or others.

7. Created a question as to whether the parent who committed the act or acts of domestic violence can serve as a suitable role model for the child, including with respect to parenting time.

8. Revealed a disdain for the other parent or child that would complicate or prevent effective legal decision-making.

9. Are denied, deflected or minimized during treatment, forensic assessment, formal discovery or courtroom proceedings by the parent who committed the act or acts of domestic violence.

10. Occurred over a period of time and with sufficient severity or frequency that the passage of time or remoteness of an earlier act or acts of domestic violence constitute an aggravating and not a mitigating factor.

E. When weighing evidence of a collateral act or acts of domestic violence, the court may consider the passage of time or prior judicial review. The court MAY not refuse evidence of a collateral act or acts of domestic violence on the grounds that the alleged act or acts of domestic violence or A related legal claim has been decided, predates the last decree or could have been litigated at another time or place. The court shall evaluate whether evidence of a collateral act or acts of domestic violence doES any of the following:

1. Establishes recurring behavior by the parent alleged to have committed an act or acts of domestic violence, including coercive control.

2. Proves the motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident by the parent alleged to have committed an act or acts of domestic violence.

3. Explains an otherwise excessive response by the alleged victim to a more recent event as well as other reactive or protective behavior by the alleged victim.

f. If the court determines that a parent committed an act or acts of domestic violence, there is a mandatory rebuttable presumption that an award of legal decision-making or parenting time to the parent who committed the act or acts of domestic violence is contrary to the child's best interests. the court MAY not require the victim or child to prove that shared legal decision-making or parenting time would harm the child. A rebuttable presumption DOES NOT arise IF mutual acts of domestic violence occurred. The court may not describe an act or acts of domestic violence as mutual or enter a legal decision-making or parenting time order that treats domestic VIOLENCE as mutual, unless the evidence establishes that both parents had the same motive for their actions, lacked justification to similar degrees and inflicted comparable harm.

G. To determine whether the parent who committed an act or acts of domestic violence has rebutted the mandatory presumption prescribed in subsection f of the section, the court shall do all of the following:

1. Review the court's findings prescribed by subsection d of this section and apply the court's findings to the rebuttal determination.

2. Consider a collateral act or acts of domestic violence by the parent against anyone.

3. Not treat any of the following considerations as mitigation or relevant to the rebuttal of the mandatory presumption:

(a) The child's absence from the location where the act or acts of domestic violence occurred.

(b) The child's unawareness that a parent committed the act or acts of domestic violence.

(c) The child's preference for reinstating, maintaining or increasing parenting time with a parent who committed the act or acts of domestic violence.

4. Consider the parent's attendance at a domestic violence treatment program. The court may not consider a certificate of completion alone as proof of rehabilitation. A parent who wishes to use attendance at a domestic violence treatment program as rebuttal evidence must do all of the following:

(a) Waive the associated statutory privilege or other confidentiality necessary to release that person's treatment records to the court and the victim.

(b) Establish that the treatment program was both relevant and proportionate to the act or acts of domestic violence for which the parent was adjudicated.

(d) Prove that the treatment program addressed and helped reduce any tendency to minimize or rationalize the act or acts of domestic violence.

5. Evaluate whether a parent's chosen treatment program was relevant and proportionate to that person's history of domestic violence. In making this evaluation, the court shall consider the criteria outlined in the Arizona administrative code that governs treatment standards for misdemeanor domestic violence offenders.

H. If the parent who committed an act or acts of domestic violence fails to overcome the mandatory presumption prescribed in subsection F of this section, the court shall do all of the following:

1. Not grant joint legal decision-making or sole legal decision-making authority to that parent.

2. Impose restrictions on the manner and frequency of that parent's interactions with the child that are consistent with the proven act or acts of domestic violence, including any of the following:

(a) Order that an exchange of the child occur in a protected location or a safe exchange location as prescribed in section 25-403.10 that is specified by the court.

(b) Limit parenting time, including a prohibition on overnight parenting time with the child.

(c) Designate a professional agency or one or more persons to supervise parenting time. The court may not appoint the victim of the act or acts of domestic violence to serve as the supervisor, whether alone or with another person. The court may not appoint a person to supervise parenting time unless the parent being supervised affirms to the court that the appointed supervisor will do all of the following:

(i) Receive and read the court's order.

(ii) Provide a reliable telephone number, email address and residential address to both parents.

(iii) Intervene and contact an appropriate law enforcement agency, the department of child safety and the other parent if the supervised parent's behavior endangers the child or becomes psychologically abusive.

(iv) Appear for future court proceedings and testify regarding the supervision.

(d) order the parent who committed the act or acts of domestic violence to pay a fee for the costs of supervised parenting time.

(e) Suspend access to the child, in any form, until the parent who committed an act or acts of domestic violence can petition for a modification of legal decision-making or parenting time pursuant to section 25-411.

(f) Order the parent who committed the act or acts of domestic violence to attend and complete a program of intervention for perpetrators of domestic violence and any other counseling the court orders.

(g) If the court finds that the parent who committed the act or acts of domestic violence has also abused alcohol, other intoxicants or controlled substances, the court may order that parent to abstain from possessing or consuming alcohol, other intoxicants or controlled substances.

(h) Require a bond for the child's safe return from the parent who committed the act or acts of domestic violence.

(i) Order that the address of the child and other parent remain confidential.

(j) Impose any other condition that the court determines is necessary to protect the child, the other parent and any other family or household member.

I. The court may not order a victim of domestic violence, whether the child or a parent, to join the parent who committed an act or acts of domestic violence in any inpatient or outpatient treatment program, counseling program or forensic assessment, whether telephonic, virtual or in person.

H. J. The court may request or order the services of the department of child safety if the court believes that a child may be the victim of child abuse or neglect as defined in section 8-201.

I. K. In determining whether the absence or relocation of a parent shall be weighed against that parent in determining legal decision-making or parenting time, the court may consider whether the absence or relocation was caused by an act of domestic violence by the other parent.

L. For the purposes of this section:

1. "coercive control":

(a) Means a pattern of threatening, humiliating or intimidating actionS that is used to harm, punish or frighten a person.

(b) Includes all of the following:

(i) A pattern of behavior that takes away A person's liberty or freedom.

(ii) Stripping A person's sense of self, bodily integrity and human rights.

(iii) Isolating a person from friends and family.

(iv) Depriving a person of independence.

(v) Regulating a person's everyday behavior.

(vi) Monitoring, surveilling, regulating or controlling a person's finances, economic resources or access to services, or those of the person's child or relative.

(vii) Monitoring, surveilling, regulating or controlling a person's activities, communications or movements, including through the use of technology, or those of the person's child or relative.

(viii) Name-calling, degrading or demeaning a person or the person's child or relative on a frequent basis.

(ix) Threatening to harm or kill a person or the person's child or relative, including wearing, accessing, displaying, using or cleaning a weapon in an intimidating or threatening manner.

(x) Threatening to commit suicide or self harm, when used as a method of coercion, control, punishment, intimidation or retaliation against a person.

(xi) Threatening to harm or kill an animal that a person or the person's child or relative has an emotional bond with.

(xii) Threatening to publish a person's sensitive personal information, including sexually explicit material, or those of the person's child or relative.

(xiii) Threatening to make reports to law enforcement authorities without reasonable cause.

(xiv) Damaging a person's property or household goods, or those of the person's child or relative.

(xv) Threatening a person or the person's child or relative with deportation, contacting authorities based on perceived or actual immigration status, withholding essential documents required for immigration or threatening to withdraw or interfere with an active immigration application or process.

(xvi) Forcing a person or the person's child or relative to take part in criminal activities or child abuse.

2. "Collateral act" means conduct that, in time, location, sequence and causation, is substantially distinct from the occurrences or acts at issue before the court.

3. "domestic violence":

(a) means, when perpetrated by one parent against the other parent or against a minor child living in either parent's household, either of the following:

(i) DOMESTIC violence as defined in section 13-3601.

(ii) coercive control.

(b) Does not include defense of self or another if the defensive acts were proportionate to the assault and the parent claiming self-defense did not provoke the altercation. END_STATUTE

Sec. 2. Section 25-404, Arizona Revised Statutes, is amended to read:

START_STATUTE25-404. Temporary orders

A. A party to a legal decision-making and parenting time proceeding may move for a temporary order. This motion must be supported by pleadings as provided in section 25-411. The court may award temporary legal decision-making and parenting time under the standards of section 25-403 after a hearing, or, if there is no objection, solely on the basis of the pleadings.

B. If a proceeding for dissolution of marriage or legal separation is dismissed, any temporary legal decision-making or parenting time order is vacated unless a parent or the child's custodian moves that the proceeding continue as a legal decision-making or parenting time proceeding and the court finds, after a hearing, that the circumstances of the parents and the best interest of the child require that a legal decision-making or parenting time plan decree be issued.

C. If a legal decision-making or parenting time proceeding commenced in the absence of a petition for dissolution of marriage or legal separation is dismissed, any temporary custody legal decision-making or parenting time order thereby is vacated.

D. If a party to a proceeding for a temporary order for legal decision-making or parenting time pursuant to this section alleges that the other party committed an act or acts of domestic violence as defined in section 25-403.03, the court shall make written findings regarding the allegation of the act or acts of domestic violence pursuant to the requirements of section 25-403.03. END_STATUTE

Sec. 3. Section 25-411, Arizona Revised Statutes, is amended to read:

START_STATUTE25-411. Modification of legal decision-making or parenting time; affidavit; contents; military families; acts of domestic violence

A. A person shall not make a motion to modify a legal decision-making or parenting time decree earlier than one year after its date, unless the court permits allows it to be made on the basis of affidavits that there is reason to believe the child's present environment may seriously endanger the child's physical, mental, moral or emotional health. At any time after a joint legal decision-making order is entered, a parent may petition the court for modification of the order on the basis of evidence that domestic violence involving a violation of section 13-1201 or 13-1204, spousal abuse or child abuse occurred since the entry of the joint legal decision-making order. Six months after a joint legal decision-making order is entered, a parent may petition the court for modification of the order based on the failure of the other parent to comply with the provisions of the order. A motion or petition to modify an order shall meet the requirements of this section. Except as otherwise provided in this section, if a parent is a member of the United States armed forces, the court shall consider the terms of that parent's military family care plan to determine what is in the child's best interest during that parent's military deployment.

B. If the parent with whom the parent's child resides a majority of the time receives temporary duty, deployment, activation or mobilization orders from the United States military that involve moving a substantial distance away from the parent's residence, a court shall not enter a final order modifying parental rights and responsibilities and parent-child contact in an existing order until ninety days after the deployment ends, unless a modification is agreed to by the deploying parent.

C. The court shall not consider a parent's absence caused by deployment or mobilization or the potential for future deployment or mobilization as the sole factor supporting a real, substantial and unanticipated change in circumstances pursuant to this section.

D. On motion of a deploying or nondeploying, mobilizing or absent military parent, the court, after a hearing, shall enter a temporary order modifying parental rights and responsibilities or parent-child contact during the period of deployment or mobilization if:

1. A military parent who has legal decision-making or parenting time pursuant to an existing court order has received notice from military leadership that the military parent will deploy or mobilize in the near future.

2. The deployment or mobilization would have a material effect on the military parent's ability to exercise parental rights and responsibilities or parent-child contact.

E. On motion of a deploying parent, if reasonable advance notice is given and good cause is shown, the court shall allow that parent to present testimony and evidence by electronic means with respect to parenting time or parent-child contact matters instituted pursuant to this section if the deployment of that parent has a material effect on that parent's ability to appear in person at a regularly scheduled hearing. For the purposes of this subsection, "electronic means" includes communication by telephone or video teleconference.

F. The court shall hear motions for modification because of deployment as expeditiously as possible.

G. If a military parent receives military temporary duty, deployment, activation or mobilization orders that involve moving a substantial distance away from the military parent's residence or that otherwise have a material effect on the military parent's ability to exercise parenting time, at the request of the military parent, for the duration of the military parent's absence the court may delegate the military parent's parenting time, or a portion of that time, to a child's family member, including a stepparent, or to another person who is not the child's parent but who has a close and substantial relationship to the minor child, if the court determines that is in the child's best interest. The court shall not allow the delegation of parenting time to a person who would be subject to limitations on parenting time. The parties shall attempt to resolve disputes regarding delegation of parenting time through the dispute resolution process specified in their parenting plan, unless excused by the court for good cause shown. A court order pursuant to this subsection does not establish separate rights to parenting time for a person other than a parent.

H. All temporary modification orders pursuant to this section shall include a specific transition schedule to facilitate a return to the predeployment order within ten days after the deployment ends, taking into consideration the child's best interests.

I. A decree or order that a court enters in contemplation of or during the military deployment of a parent outside of the continental United States shall specifically reference the deployment and include provisions governing the legal decision-making or parenting time arrangements, or both, of the minor child after the deployment ends. Either parent may file a petition with the court after the deployment ends to modify the decree or order, in compliance with subsection L M of this section. The court shall hold a hearing or conference on the petition within thirty days after the petition is filed.

J. The court may modify an order granting or denying parenting time rights whenever modification would serve the best interest of the child, but the court shall not restrict a parent's parenting time rights unless it finds that the parenting time would endanger seriously the child's physical, mental, moral or emotional health.

K. If after a legal decision-making or parenting time order is in effect one of the parents is charged with a dangerous crime against children as defined in section 13-705, child molestation as defined in section 13-1410 or an act of domestic violence as prescribed in section 13-3601 in which the victim is a minor, the other parent may petition the court for an expedited hearing. Pending the expedited hearing, the court may suspend parenting time or change legal decision-making ex parte.

L. An allegation of an act or acts of domestic violence as defined in section 25-403.03 shall be a primary factor in the court's consideration of modification of a legal decision-making or parenting time order. The court shall allow a parent to present evidence of an act or acts of domestic violence that occurred before the existing legal decision-making or parenting time order.

L. M. To modify any type of legal decision-making or parenting time order a person shall submit an affidavit or verified petition setting forth detailed facts supporting the requested modification and shall give notice, together with a copy of the affidavit or verified petition, to other parties to the proceeding, who may file opposing affidavits. The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the pleadings, in which case it shall set a date for hearing on why the requested modification should not be granted.

M. n. The court shall assess attorney fees and costs against a party seeking modification if the court finds that the modification action is vexatious and constitutes harassment.

N. O. Subsection L M of this section does not apply if the requested relief is for the modification or clarification of parenting time and not for a change of legal decision-making. END_STATUTE