Marriage of Christopher K. v. Southern

• Decision Date: 31 October 2013
• Docket Number: No. 1 CA–CV 12–0305.,1 CA–CV 12–0305.
• Citation: 672 Ariz. Adv. Rep. 14,233 Ariz. 297,311 P.3d 1110
• Parties: In re the Marriage of CHRISTOPHER K., Petitioner/Appellant, v. MARKAA S., Respondent/Appellee.
• Court: Arizona Court of Appeals

233 Ariz. 297

311 P.3d 1110

672 Ariz. Adv. Rep. 14

In re the Marriage of CHRISTOPHER K., Petitioner/Appellant,

v.MARKAA S., Respondent/Appellee.

No. 1 CA–CV 12–0305.

Court of Appeals of Arizona,

Division 1, Department A.

Oct. 31, 2013.

Law Office of Scott E. Boehm, P.C. by Scott E. Boehm, Phoenix, and Hildebrand Law, P.C. by Christopher S. Hildebrand, Scottsdale, Cocounsel for Petitioner/Appellant.

Hymson Goldstein & Pantiliat, PLLC by Yvette D. Ansel, Jennifer B. Rubin, Scottsdale, Attorneys for Respondent/Appellee.

OPINION

SWANN, Judge.

¶ 1 This is an appeal ¹ from the denial of a petition for modification of custody ² and relocation. We hold that when physical discipline of a child is at issue in a custody proceeding, the court must determine expressly whether the discipline rises to the level of domestic violence. And when domestic violence is found, A.R.S. § 25–403.03 requires that the court accord the issue “primary importance” and treat the evidence as contrary to the best interests of the child. We further hold that the family court may not rely exclusively on the testimony and report of a custody evaluator to make the findings necessary to support a decision concerning modification of custody and relocation of a child.

¶ 2 Father sought to relocate his children from their mother's residence in Arizona to his residence in Minnesota, alleging that Mother had allowed her husband (“Stepfather”) to abuse the children. When a custody evaluator interviewed Stepfather, he admitted to several acts that could have constituted domestic violence against the children. But the court did not give the evidence of domestic violence the consideration required by A.R.S. § 25–403.03, and it did not independently decide the children's best interests under A.R.S. § 25–403. We therefore vacate the order denying Father's petition and remand for a new evidentiary hearing.

FACTS AND PROCEDURAL HISTORY

¶ 3 Mother and Father married in 1996 and together had two children, J. and R., in 1999 and 2002. In 2006, Father moved out of the family's Minnesota home, Mother and the children moved to Arizona, and Father filed a petition in the Minnesota district court for dissolution of the marriage. In 2008, the Minnesota court entered a decree of dissolution granting the parties joint legal custody of the children, awarding Mother sole physical custody, and ordering parenting time for Father. Mother married Stepfather shortly thereafter and domesticated the decree in Arizona the next year.

¶ 4 In February 2011, Father petitioned the Maricopa County Superior Court for temporary and permanent modification of custody of J. and R. Father alleged that a modification of custody was necessary because Mother had failed to protect J. and R. from Stepfather. Specifically, Father alleged that Stepfather had: choked and shoved J. against a wall; thrown J. into a bathtub and forced him to stand under a cold shower; forced J. to eat his own vomit; forced R. to sleep overnight in a bathtub; thrown water on R. and forced him to sleep in a wet bed; and intentionally struck R. with a shovel handle.

¶ 5 The court denied Father's petition for a temporary modification of custody, finding that the children were “not in serious danger or [imminent] risk of harm” and there was “no reason to change custody at this point without a full evidentiary hearing on the issues of modification.” The court granted Father's motion to transfer jurisdiction to Maricopa County, and appointed a custody evaluator.

¶ 6 The custody evaluator interviewed Father, Mother, Stepfather, the children and others, and observed Father and Mother interact with the children. The custody evaluator authored an extensive report detailing the interviews and her observations.

¶ 7 The custody evaluator reported that J. and R. confirmed some version of many of the abusive episodes alleged in Father's petition. J. described two experiences: Stepfather using his arm on J.'s neck to push him against a wall after J. called him a name (after which Mother required J. to write a note stating that the incident did not occur), and Stepfather placing J. under a running shower after J. refused to kiss him. R. also described two experiences: Stepfather threatening to make R. eat regurgitated food, and Stepfather making him sleep in a bathtub one night after he wet the bed. R. further reported Stepfather using a hand to spank him and to pinch him on the back of the neck.

¶ 8 The custody evaluator reported that Stepfather admitted some version of several of the alleged incidents. First, Stepfather admitted that he had placed J. in a shower after J. had refused to hug him, made a vulgar statement to or about Mother, and refused to apologize. According to Stepfather, he turned the water on and off quickly over J., gave J. a towel, and spoke to him about what J. liked and disliked about both Arizona and Minnesota, where he had visited Father a few days before. Stepfather told the custody evaluator that he knew he acted inappropriately, had never before disciplined J. in this way, and did it because he did not know how to reach J. Second, Stepfather admitted that he had told R. that his bed would be made in the bathtub if R.'s incontinence problems continued, and one evening R. was required to stay in the bathtub, with towels and blankets and with Mother in the bathroom, for about twenty minutes. Third, Stepfather admitted that he had once tossed a lidded cup of water to R. after R. threw the cup on the ground, and R. had complained that the water got on his pajamas. Fourth, Stepfather admitted that he had tapped R. on the head with a shovel handle, after R. accidentally hit J. with a shovel handle and laughed when J. cried. Stepfather also disclosed that since Father filed his petition, Stepfather had helped Mother treat a blemish on R.'s face by holding R.'s hands together when he refused to stay still.

¶ 9 The custody evaluator found that Stepfather's “style of parenting/disciplining the children” was “concerning” and was “certainly viewed by the children as frightening and intimidating,” and that Mother had allowed the “questionable” behavior. The custody evaluator noted in her report that Child Protective Services (“CPS”) had investigated many of the incidents she discussed with the family, and that though CPS had closed the case as unsubstantiated, the case manager had voiced concerns about Stepfather's parenting techniques and had recommended that Stepfather and Mother attend parenting classes. She was further concerned that Father had been ordered to counseling in the past; and also that he might be coaching J. about what to say to her. The evaluator ultimately recommended that Father be awarded custody of the children.

¶ 10 The court admitted the custody evaluator's report into evidence at the evidentiary hearing on Father's petition for permanent custody modification. The custody evaluator was also the principal witness at the hearing. She reiterated her concerns about Stepfather's parenting techniques, but testified that she no longer knew what she would recommend regarding custody because Stepfather and Mother were making progress in family counseling.

¶ 11 The family counselor, who had begun meeting with Mother, Stepfather and J. shortly after Father petitioned for change of custody, confirmed that Stepfather was making progress. The counselor acknowledged that Stepfather could at times be “somewhat reactive in his parenting approach with [J.],” and had admitted to placing J. in the shower and to pushing and holding J. against a wall. But the counselor reported that Stepfather denied having struck J. during a recent altercation that had resulted in a call to the police, and opined that he saw no reason for the children to be removed from Stepfather and Mother's home.

¶ 12 After the custody evaluator and the counselor testified, Father testified briefly. Father testified that a different division of the superior court had recently granted primary physical custody of Stepfather's biological children to their mother. Father admitted that he had made disparaging remarks to the children about Mother's religion and testified that Mother had called him names in inaudible portions of years-old recordings that she offered into evidence. Neither Mother nor Stepfather testified.

¶ 13 At the conclusion of the hearing, the court denied Father's petition to modify custody and relocate the children. The court stated that with respect to the findings required by A.R.S. §§ 25–403 and 25–408, it “incorporate [d] ... by reference” the findings that the custody evaluator made in her report. The court concluded that it was in the children's best interests to remain in Arizona, but warned Mother:

Now, to mom, you've got to step up. All right? And basically, if you see that there is an escalation of the current husband and the children, you have to step as a parent, step up as a parent and say one of you has got to go. And you can't do this.

And I tell parents day in and day out, there's one relationship that I am obliged to protect, and that's the relationship dad has with his kids and mom has with those kids, not step-dad, not step-mom, not anyone else. That's the two relationships I am obligated to protect.

And quite frankly, mom, it may come down to—if you make the choice. And I've got several cases recently where the choice has been not the children, then we'll deal with that eventuality, but you need to step up. You need—first of all, no one lays a hand on these kids. Period. You're going to parenting classes. Learn a different type of discipline, plain and simple.

Quite frankly, I grew up in the corporal punishment age. It continued through high school. We used to take great pride in the number of swats we would get, but now, you can't even touch a student. Life changes. Get used to it. But no one touches these children: Not you, not your husband. Any questions about that, mom? And you need to step up....