As an attorney practicing both criminal defense and family law, I often handle cases in which one parent accuses the other of domestic violence. If my client has been accused, the question is always the same: can I lose custody of my children because of such accusations?
Arizona law no longer refers to “child custody.” Instead, parents have rights to: (a) legal decision-making authority (the right to make educational, religious, medical and similar decisions for your children), and (b) parenting time. Joint legal-decision making authority means that “neither parent’s or responsibilities are superior”. See Arizona Revised Statutes §25-401. Unless a parent has some specific physical or mental condition that inhibits his or her ability to make decisions for a child, joint legal decision-making authority will usually be awarded. Arizona Revised Statute §25-403.03(A) states that “joint legal decision-making shall not be awarded if the court makes a finding of the existence of significant domestic violence” (emphasis added).
Domestic violence encompasses a wide range of behavior. Some of this is stereotypical “wife-beater” behavior: physical abuse, sexual abuse, and the like. However, threatening and intimidating are also considered acts of domestic violence under Arizona’s statutory definitions. Thus, if a person has angry words with his or her spouse in a moment of frustration and leaves their spouse feeling threatened, that person has committed domestic violence. Is this enough to justify taking away legal decision-making authority?
The short answer is no, but the spouse can certainly try. In this situation, it is up to the judge to determine whether the alleged domestic violence rises to the level of “significant.” A single exchange of frustrated words will probably not qualify. If, on the other hand, one spouse alleges that the other yelled at him or her for several hours a day every day for twelve years, this could certainly be considered “significant” domestic violence.There is no single test for what makes domestic violence “significant.”
Further complicating this issue is the lack of witnesses to domestic violence: usually, there are no witnesses other than the parents themselves. In this case, a judge will hear a “he said/she said” version of events, and be forced to determine which parent is telling the truth. This makes it even more difficult to prove that significant domestic violence did – or did not – occur.
If you are ever confronted with allegations of domestic violence, there is the potential for both criminal charges and the loss of parental rights. The experienced family law attorneys and criminal defense attorneys at Rowley Chapman & Barney can protect your interests in both the criminal and family courts.
