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."
