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. As a declared public policy of this state and notwithstanding section 25-103, subsection B, The court shall consider domestic violence, including child abuse, as contrary to a child's best interests. In any legal decision-making and parenting time matter, the court shall assign the highest priority to the personal safety and physical, mental and emotional well-being of both the child and domestic violence victim.

B. Before entering an order for legal decision-making or parenting time, The court shall resolve any domestic violence allegation by making specific written findings on the record about each of the following considerations for which evidence was admitted at a trial or other evidentiary hearing:

1. A thorough description of the EVIDENCE that justified or prevented a finding under subsection C of this section that domestic violence occurred.

2. After considering each factor prescribed in subsection E of this section, A thorough explanation for why a parent who committed domestic violence did or did not rebut the mandatory presumption that is imposed by subsection D of this section.

3. a thorough explanation for why the court's choice of precautions prescribed in subsection H of this section is in the child's best interests.

C. A domestic violence claim shall be established by a preponderance of the evidence. corroboration from exhibits or witness testimony of another person is not required. Subject to the evidentiary standard in effect for that proceeding, the court shall consider all of the following:

1. Factual determinations related to 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 and any separate right to confidentiality under state or federal law.

4. Records from a shelter for victims of domestic violence as defined in section 36-3001, if the victim provides informed written consent.

5. Educational and school records.

6. other acts of domestic violence against any person THAT tend to prove the existence of coercive control, even if those other acts have been decided, predate the last decree or could have been litigated at another time or place.

7. Witness testimony.

D. If the court determines that a parent has committed domestic violence, There is a mandatory rebuttable presumption that an award of legal decision-making or parenting time to that parent is contrary to the child's best interests. The court may not do either of the following:

1. Require the victim to prove that the domestic violence was severe or frequent enough to justify restricting the legal decision-making or parenting time of the parent who committed domestic violence.

2. Describe the parents' domestic violence as mutual or apply the presumption of this subsection to both parents, unless both parents lacked justification for their domestic violence to a similar degree and inflicted similar injury. The court shall otherwise apply the presumption only to the parent whose conduct and motivation were more serious under the definition of domestic violence.

e. If a parent who committed domestic violence seeks to rebut the mandatory presumption imposed by subsection D of this section, the court shall consider all of the following:

1. The severity and frequency of the parent's domestic violence against any person, including an assessment of whether that violence was aggravated by any of the following:

(a) Physical injury or emotional trauma.

(b) Use or threatened use of a firearm or other dangerous weapon.

(d) Multiple forms of coercive control.

2. The extent to which the parent denied, deflected or minimized the domestic violence during treatment, forensic assessment, mandatory disclosure, formal discovery or courtroom proceedings.

3. Whether the parent committed domestic violence with sufficient severity or frequency that the passage of time is not a mitigating factor.

4. Whether the child has imitated any aspect of the parent's domestic violence behaviors.

5. 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 certificate of completion must be accompanied by all of the following:

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

(b) Proof that the treatment program was both relevant and proportionate to any domestic violence for which credible evidence is presented, taking into account the criteria that are outlined in the arizona administrative code for the treatment of misdemeanor domestic violence offenders.

(d) proof that the treatment program addressed and helped reduce any tendency to minimize or rationalize the parent's domestic violence.

F. The court shall disregard all of the following factors as IRRELEVANT to the mandatory presumption imposed by subsection D of this section:

1. The child's absence from the scene of any domestic violence.

2. the child's unawareness that domestic violence occurred.

3. The child's preference for reinstating, maintaining or increasing contact with the parent who committed domestic violence.

g. The court may not grant any of the following to a parent who is restricted by the mandatory presumption imposed by subsection d of this section:

1. Sole legal decision-making or joint legal decision-making, unless the parent overcomes the presumption by clear and convincing evidence.

2. unsupervised parenting time, unless the parent overcomes the presumption by clear and convincing evidence.

3. supervised parenting time, unless the parent overcomes the presumption by a preponderance of the evidence.

H. for a parent who has committed domestic violence, the court shall adopt precautions that prioritize the personal safety and physical, mental and emotional well-being of the child and other parent. these precautions may do all of the following:

1. require 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.

2. Limit parenting time, including a prohibition on overnight parenting time with the child.

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

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

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

(c) 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 or physically abusive.

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

4. require the parent who committed domestic violence to pay a fee for the costs of supervised parenting time.

5. Suspend access to the child, in any form, until the parent who committed domestic violence can petition to modify legal decision-making or parenting time pursuant to section 25-411.

6. require the parent who committed domestic violence to attend and complete an assessment or a program of intervention for perpetrators of domestic violence and any other counseling.

7. If the court finds that the parent who committed domestic violence has also abused any substance, including alcohol, require that parent to abstain from possessing or consuming that substance and order random testing to ensure compliance.

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

9. require that the address of the child and other parent remain confidential.

10. 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 domestic violence in any inpatient or outpatient treatment program, counseling program or forensic assessment, whether telephonic, virtual or in person.

J. If a parent who has committed domestic violence fails to overcome the mandatory presumption imposed by subsection D of this section, the presumption shall continue to apply in any subsequent modification proceeding commenced under section 25-411.

H. K. 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. L. 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.

M. For the purposes of this section:

1. "coercive control" Means a pattern of violent, threatening, coercive or emotionally abusive conduct by one parent against the other, without consent or justification, including any of the following:

(a) sexual or other physical assault.

(b) threatening to kill or injure a person, including oneself, or a household pet.

(c) displaying, accessing, assembling or cleaning a firearm or other dangerous weapon in the other parent's presence, if the circumstances imply that weapon's threatened use in violation of state or federal law.

(d) confinement or other restraining words or actions to restrict the other parent's freedom of movement or lawful activity.

(e) isolation from friends and family.

(f) monitoring or regulating financial activity, economic resources or access to services.

(g) stalking or harassment.

(h) demeaning, degrading or humiliating words or actions.

(i) threatening to publish sensitive information, including sexually explicit material, of the other parent or member of the other parent's family.

(j) threatening to make reports to law enforcement.

(k) threatening, initiating or using civil litigation, including proceedings under this title or section 13-3602, to do either of the following:

(i) force the other parent to defend against a legal claim that is false or frivolous.

(ii) regulate or restrict the other parent's lawful or constitutionally protected activity.

(l) damaging property owned or lawfully possessed by the other parent or member of the other parent's family.

(m) by act or conscious omission, jeopardizing the immigration status of the other parent or a member of the other parent's family.

(n) forcing the other parent to commit a crime against the other parent's stated wishes.

(o) using surveillance or tracking technology to facilitate or aggravate any of the behaviors listed in this paragraph.

2. "domestic violence":

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

(i) any act or offense prescribed in section 13-3601, subsection A.

(ii) coercive control.

(b) Does not include either of the following:

(i) Defense of oneself as described in section 13-404.

(ii) Defense of another person as described in section 13-406. 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 any party to a proceeding for temporary legal decision-making or parenting time alleges domestic violence as defined in section 25-403.03, the court shall make written findings that are consistent with section 25-403.03, subsection B. These findings may be confined to evidence that is admitted at a temporary orders hearing. 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. A parent who has committed domestic violence as defined in section 25-403.03 and who previously failed to rebut the mandatory presumption imposed by section 25-403.03, subsection D remains subject to the same presumption in any modification proceeding that is brought pursuant to this section, regardless of the allegations made in the new pleadings. The question of whether evidence now exists to overcome the mandatory presumption imposed by section 25-403.03, subsection d shall be resolved, as a preliminary matter, when the court decides whether a sufficient change of circumstances has occurred to allow a modification of a 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

Sec. 4. Emergency

This act is an emergency measure that is necessary to preserve the public peace, health or safety and is operative immediately as provided by law.

Sec. 5. Short title

This act may be cited as the "Alec and Lydia Act".