A domestic violence charge can affect child custody in Arizona, but it does not automatically mean a parent will lose custody or visitation rights. Family courts examine the allegations and available evidence to determine whether domestic violence occurred and what arrangements are in the child’s best interests.
Arizona uses the term legal decision-making rather than custody when referring to a parent’s authority to make important decisions about a child’s upbringing. Under A.R.S. § 25-403.03, a family court finding of domestic violence creates a rebuttable presumption that awarding legal decision-making or parenting time to the responsible parent is contrary to the child’s best interests.
A parent who has committed domestic violence must overcome this presumption before receiving certain parental rights. Courts may also impose supervised parenting time or other restrictions to protect the child and the other parent.
What Counts as an “Act of Domestic Violence” for Child Custody Purposes?
For Arizona child custody purposes, domestic violence can include certain criminal offenses involving family or household members, as well as coercive control. Under A.R.S. § 25-403.03, family courts evaluate the underlying conduct rather than relying solely on whether criminal charges were filed.
Examples may include physical assault, threats, harassment, and coercive control. Coercive control can involve patterns of intimidation, isolation, financial restrictions, or monitoring intended to dominate another person’s behavior. The statute also recognizes exceptions for qualifying acts of self-defense or defense of another person.
The court must determine whether the evidence establishes domestic violence under the applicable legal definition.
What Evidence Can the Family Court Consider?
Arizona family courts consider several types of evidence when deciding whether domestic violence occurred. A criminal conviction is not required, and the court may consider records and testimony related to the allegations.
Evidence can include:
- Findings from another court: Previous court determinations involving domestic violence.
- Police reports: Law enforcement records documenting alleged incidents.
- Medical records: Records of injuries or treatment, subject to applicable consent and confidentiality requirements.
- Department of Child Safety records: Reports and findings involving child abuse or neglect.
- Domestic violence shelter records: Relevant records provided with the required consent.
- School records: Information that may help establish the circumstances surrounding the allegations.
- Witness testimony: Statements from the parents or other people with relevant knowledge.
The court may also consider evidence of other domestic violence incidents that helps establish a pattern of coercive control. It evaluates the evidence under the civil standard of proof rather than the criminal standard.
How Does a Domestic Violence Custody Case Differ From a Criminal Domestic Violence Case?
A domestic violence custody case is a civil family court matter, while a criminal domestic violence case determines whether someone committed a criminal offense. The two proceedings have different purposes, legal standards, and potential outcomes.
In criminal court, prosecutors must prove the charged offense beyond a reasonable doubt. Family courts instead determine whether domestic violence occurred under a lower standard of proof and how it affects the child’s best interests.
This means a parent may face restrictions on legal decision-making or parenting time even without a criminal conviction. Evidence from one case may also be relevant to the other.
Can the Presumption Against Custody Be Overcome?
Yes. A parent found to have committed domestic violence may overcome the presumption against legal decision-making or parenting time. Arizona law requires clear and convincing evidence for sole or joint legal decision-making or unsupervised parenting time, but only a preponderance of the evidence for supervised parenting time.
Courts consider the severity and frequency of the violence, participation in treatment, and evidence of rehabilitation. Even if the presumption is overcome, the court may impose restrictions to protect the child and other parent.
At Katsarelis Law Criminal Defense Attorneys, our Tucson domestic violence defense lawyers can help you understand how criminal allegations may affect your parental rights and legal options.
What Should You Do if a Domestic Violence Case Is Affecting Your Custody Situation?
If domestic violence allegations are affecting your child custody situation in Tucson, it is important to consider how the criminal and family court proceedings may influence each other.
Taking the following steps can help you address both matters:
- Speak with a criminal defense attorney: Have an attorney review the allegations, evidence, and potential consequences for your parental rights.
- Follow all court orders: Comply with any protective orders, parenting time restrictions, or other conditions imposed by the courts.
- Preserve relevant evidence: Keep messages, documents, and other records that may be important to the criminal or family court proceedings.
- Avoid discussing the allegations publicly: Statements made on social media or to other people could become evidence in either case.
- Coordinate your legal representation: Work with criminal defense and family law attorneys to address overlapping evidence and avoid conflicting legal positions.
Domestic violence allegations can affect more than your criminal case. Katsarelis Law Criminal Defense Attorneys can review the criminal charges and coordinate with family law counsel when necessary, helping you address how the allegations may affect your custody situation. Contact us today for a free consultation.
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