Recent Ruling - Arizona Child Custody Appeal
Sometimes the simple things count the most. Remember, if you are in the process of appealing a child custody determination made by the Arizona Family Court, make sure you attach a copy of the transcript of the custody hearing for the Appellate Court's review.
In Bourgo v. Bourgo, 2009 WL 5062194 (Ariz.App. Div. 1)(Dec. 24, 2009), Mother forgot to do just that and as a result, her appeal challenging the denial of her petition to modify child custody was denied.
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As for the underlying facts, Mother and Father have three children in common. Mother petitioned for dissolution in 2003. The parties disagreed regarding custody of the children. An evidentiary hearing was held. The court awarded sole legal custody to Father and granting Mother parenting time. The court found that because there had been a significant history of domestic violence between the parties, an award of joint custody was prohibited by Arizona Revised Statutes (“A.R.S.”) section 25-403(E) and Mother's mental health issues did not support awarding her sole custody. In March 2006, the court adopted the parties' Parenting Plan and allowed Father to have sole legal custody of the children in Oregon. The court ordered Mother would have parenting time in Oregon with 48 hours' notice to Father.
In April 2008, Father petitioned to change Mother's parenting time to supervised parenting time. Mother filed a petition to modify child custody, seeking sole legal custody of the children. The court set an evidentiary hearing on both parties' petitions and referred them to Conciliation Services for a parenting conference. After the hearing, the court denied Mother's petition to modify and ordered that her parenting time must be supervised. The court also ordered that before Mother could exercise her parenting time, she undergo a psychological assessment to rule out any pathology that could pose a risk to the children's safety and well-being. In support of its ruling, the court adopted the findings of fact and conclusions of law set forth in Conciliation Services' Parenting Conference Report. Mother timely appealed the court's decision.
The court's order reflects that it considered both parties' testimony and arguments as well as the Parenting Conference Report dated August 15, 2008. The court adopted the findings of fact and conclusions of law contained in the Parenting Conference Report, which included detailed and specific findings as to each of the statutory factors contained in A.R.S. § 25-403(A). In addition, the court made further findings regarding certain specific circumstances that affect the children's best interests, in particular Mother's lack of recent contact with the children and her alleged mental health problems.
Nevertheless, Mother contends the court's findings that Mother acknowledged she had not received any mental health treatment since June 2004 and had not spent any time with the children since 2006 were incorrect. She alleges she testified that she had been seen and treated by three doctors and visited the children in 2006.
The Court of Appeals held that "[a] party arguing that a superior court ruling was not supported by the evidence must provide a certified transcript of the evidentiary hearing on appeal and, if he or she fails to do so, we will assume the evidence was sufficient to support the court's findings. As Mother has not provided a copy of the transcript from the evidentiary hearing, we presume the evidence supports the family court's findings."
What about millions of Fathers who are MIA because of the family court system? Political figures often discuss the welfare of our children but never discuss the problem regarding our family court system, unfair visitation laws and how those laws effective fathers who want to be part of their children’s lives.
There is a Child Support Enforcement agency in every state but not a Visitation/Parenting Time Enforcement Agency. Why? This needs to be an issue addressed at the federal level and not decided by the states because the system at the state level is not working. Most states call the time Fathers spend with their children as “Visitation” instead of calling it what it is “Parenting time”. Parenting time is a time to be a parent to your child. Visitation is what the family court force on fathers, as they want fathers to become an occasional visitor. Family courts wants fathers to settle for becoming a 'Disney Dad,' one whose role is nothing more than outings to theme parks once or twice a month. Why can’t the family courts grant time to fathers in a frequency, duration, and type reasonably calculated to promote a strong and loving relationship between the child and the parent? The standard visitation which is four days a month is not enough time to be an effective parent to your child. The family courts very, very rarely enforce visitation. Here, the prejudice is against fathers and their parental rights. The congress refuses to acknowledge the injustice, cruelty, brutality and inhumanity of denying the love and companionship between a father and their child. Divorce from a spouse is not a divorce from your children, nor should custody decisions be used as a punishment. Joint custody can benefit the children, the divorced parents, and society in general by having both parents involved in the child’s upbringing.
Fathers are systematically eliminated from their children’s lives. Father’s parental rights are systematically terminated by family court judges who have a deep seated gender bias against fathers. Termination of parental rights is both total and irrevocable. Termination of parental rights is the family law equivalent of the death penalty in a criminal case. The primary casualties in our Domestic Relations courts are our children.
Courts are supposed to approach cases of child custody, support payments, and visitation rights in a gender-neutral posture. It sounds fair, and it is fair. But it is a myth. Judges are not enforcing these gender laws fairly, and few seem to care. Unless you have been forcefully removed from the everyday upbringing of your child by the Court, you can not fathom the emotional distress. To discriminate against fathers because of their gender in this day and age is no different than telling a person to go to the back of the bus because of their skin color. With sole or primary custody going to the mother in roughly 90% of cases, claiming custody is not based on gender would be like claiming hiring is not based on race if 90% of a particular race, though equally qualified, was unable to obtain employment. This was missing from the Obama’s Father’s day speech. What about millions of Fathers who are MIA because of the family court system?
Anguish is experienced by hundreds of thousands of fathers across the country. Their grievances include: blocked visitation and unenforced visitation orders; "move away" spouses who use geography as a method of driving fathers out of their children's lives; acceptance by the courts of false and/or uncorroborated accusations as a basis for denying custody or even contact between parent and child; a "win/lose" system which pits ex-spouses against one another by designating a custodial and a noncustodial parent; courts which in determining custody tilt heavily towards the parent who initiates the divorce, thus encouraging each parent to "strike first"; burdensome legal costs; and judicial preference for mothers over fathers as custodial parents.
The child's right to equal access and opportunity with both parents, the right to be guided and nurtured by both parents, the right to have major decisions made by the application of both parents' wisdom, judgment and experience. The child does not forfeit these rights when the parents divorce.