Appellate Court docket Reverses Little one Custody Choice That Was “Primarily based on [a] Decade-Previous Sexual Assault Allegation”

FromYoung v. Benoit, decided yesterday by the Arizona Court of Appeals, in an opinion by Presiding Judge David D. Weinzweig, joined by Judges Brian Y. Furuya and Judge Jennifer M. Perkins:

Mother and Father dated for several months in 2010 and 2011. They had sex, often unprotected, and Mother got pregnant. Their relationship ended before the child, Jack, was born in October 2011. Two months later, Father petitioned the family court to establish paternity, child custody, parenting time and child support….

Mother and Father resolved all issues [in 2012] under a “Joint Custody Agreement and Parenting Plan.” Both parents were represented by counsel, and both signed the agreement. In relevant part, the agreement provided that “[t]he parties have taken into consideration the best interest of the minor child as required under ARS § 25-403,” “[n]either parent is influenced by duress or coercion in entering into this Agreement,” “FATHER and MOTHER can sustain an ongoing commitment to the child,” and “[t]here has been no significant domestic violence that would preclude joint legal custody in this matter.”

The court [gave the parties joint legal custody but] … awards[ed] Mother final decision-making authority on important decisions and awards[ed] Father parenting time every other weekend…. The court also found that Mother and Father had “mutually agreed to proceed by consent,” that “no duress or coercion [was] involved in the negotiations,” and that “each party understands[ood] that by virtue of this agreement, they are waiving their right to trial.” Neither Father nor Mother appealed from the 2012 Decree….

Almost two and a half years later, Mother petitioned to modify the 2012 Decree, requesting sole legal decision-making and that Father’s parenting time be supervised. [The court … denied Mother’s petition to modify but granted Father’s request for joint legal decision-making and equal parenting time (“2016 Decree”).] …

About three years later, in November 2019, Mother petitioned the family court to modify the 2016 Decree. This time, she requested an order granting her sole legal decision-making and suspending Father’s parenting time.

Mother’s petition focused on one month, November 2019, alleging an assortment of “substantial and continuing changes in circumstances,” including that Father pressed on Jack’s belly after an appendectomy, forced Jack to engage in physical activity and did not give him pain medication. According to the petition, Jack told Mother that Father hit and kicked him, called him names like “stupid face,” did not feed him and made him sleep in the bathroom. Mother’s petition did not allege any past or present sexual abuse….

The family court appointed [an] advisor and licensed social worker … to investigate the claims and report her findings. The … advisor reviewed many documents and interviewed both parents, eight-year-old Jack, his therapist and Mother’s therapist. The … advisor later released a written report in January 2021, recommending that Mother’s petition be denied. The … advisor concluded “there is insufficient information to find that Father has abused or neglected [Jack] or that restrictions should be placed on his parenting time.”

When interviewed by the … advisor in 2020, Mother alleged she was sexually abused by Father in 2010, and Father responded to the allegation. According to [the] advisor’s report:

Mother alleged that Father sexually assaulted her, which resulted in the conception of the child. Father explained that he was taking diazepam for anxiety, and it impacted his sexual performance. When they were having sex, Mother complained that her back was hurting, but Father was close to orgasming and did not immediately stop. Mother pushed Father off of her. He noted that they had sex numerous times afterwards.

The … advisor added that Mother had reported Father to law enforcement for alleged sexual abuse of Jack in 2015, before she first moved to modify. After an investigation, however, the police department and the Department of Child Safety determined the accusations were unsubstantiated. Jack also accused Father of serious abuse and neglect in 2019, before Mother moved for the second modification. But again, the police and DCS investigated and determined the claims were unsubstantiated. Indeed, the DCS investigator said, “there was no evidence of abuse and neglect,” and Jack’s “disclosures did not seem credible.” …

The court held an evidentiary hearing and heard testimony from Mother, maternal grandmother and the … advisor. Father represented himself. When the … advisor took the stand, the court asked her a series of questions about “an issue that has been weighing on me since I reviewed your report,” which led to the following exchange:

Court: You would agree with me that it is accurate that before, even before Mother filed her current petition, there is an allegation that she made that the child in this case was conceived by way of sexual assault, correct?

Witness: Correct.

Court: Would you agree that in your interview with Father, Father—while not using those words, in essence, admitted to a sexual assault?

Witness: Yes.

Father then tried to cross-examine the … advisor, but the court warned him about the “potential criminal ramifications” of his statements, which “may be used against [him] in court in a criminal prosecution.” After this warning, Father stopped his questioning and sat down.

In March 2021, the court granted Mother’s petition and more …. The court awarded Mother sole legal decision-making authority and terminated Father’s parenting time. It found “a substantial and continuing change does exist because Father admitted to the [… advisor] that he committed a sexual assault against Mother, and the child is fearful to spend unsupervised time with Father.”

On the best-interest factors, the court stressed that “Father sexually assaulted [Mother] during [their] relationship [in 2010],” which “Father admitted.” The court described the incident as follows:

Mother had told [Father] to stop and that she was in pain during what began as a consensual sexual encounter. Father further stated that he intentionally did not cease the activity despite Mother’s withdrawal of her consent to the same because he was close to having an orgasm. In fact, Mother credibly reported, it was this non-consensual sexual act that led to the conception of the child.

Based on that incident, the court found that Father should have no parenting time, stressing:

No woman should be forced into or ordered to maintain a relationship with her sexual abuser. Furthermore, it is contrary to a child’s best interests to have a relationship with his mother’s sexual assailant. That, combined with Father’s emotional and physical abuse of the child warrant a cessation of Father’s parenting time with the child.

The court also accepted Jack’s testimony that Father had tortured him and “he does not feel safe around Father.” Based on this same evidence, the court also found that Father had “engaged in acts of domestic violence against Mother and the child,” triggering a assumption that it was not in Jack’s best interest for Father to have sole or joint decision-making authority and concluding that Father did not rebut the assumption. The court also increased Father’s child support payments and found that he owed over $6,000 in past-due support….

The Court of Appeals reversed:

Arizona courts apply a two-step inquiry to determine whether a custody decree should be modified. The court must first “ascertain whether there has been a change of circumstances materially affecting the welfare of the child.” {This prong is rooted in the principle of res judicata, and parents who seek modification must show “the change justifies departing from the principles of res judicata underlying the order currently in place.”} If the court finds a change of circumstances, it will then decide whether the proposed modification would be in the child’s best interest. Absent contrary evidence, we presume that “substantial, frequent, meaningful and continuing parenting time with both parents” is in a child’s best interest….

As its first “substantial and continuing change,” the court found that “Father admitted to the [… advisor] that he committed a sexual assault against Mother.” That was an error for two reasons.

First, the alleged assault occurred in early 2011—almost two years before Mother agreed to joint custody as ordered by the 2012 Decree, five years before the 2016 Decree, and ten years before the 2021 Decree. Our supreme court has cautioned that the “power to modify [a custody] decree is to be exercised only when cogent reasons are shown,” and those “reasons must constitute facts or conditions unknown at the time of the original decree, or occurring subsequent to the decree.” …

Second, Mother thus waived her right to modify custody based on the earlier 2010 incident. Mother had every chance to present evidence and argument of Father’s alleged abuse in 2012, but she entered an agreement after Jack’s birth to share joint legal custody with Father. The court then entered the 2012 Decree for joint legal custody, finding it was in Jack’s best interest for the parents “to have joint legal custody.” The 2012 Decree also confirmed that Mother and Father “testif[ied] that they understand this agreement and believe it is to be in the best interests of the minor children at this time, that no one has threatened, promised or coerced them in any way to get them to reach the agreement, and the terms are fair and equitable.” Neither Father nor Mother appealed from the 2012 Decree. The family court erroneously found a change in circumstances based on the decade-old sexual assault allegation….

The court’s second reason for finding “a substantial and continuing change” was Jack’s fear of “spend[ing] unsupervised time with Father.” That was error, too.

A child must be of “suitable age and maturity” for the court to consider the child’s “wishes [over] legal decision-making and parenting time.” … [T]he record reflects:

  • Jack’s therapist described Jack as “oppositional and manipulative” and “in a loyalty bind between his parents.”
  • Jack often struggled to distinguish reality from fiction, “report[ing] visual and auditory hallucinations,” and was deemed unbelievable by a DCS investigator who could see no reason to separate Jack from his Father.
  • Jack accused Father of serious abuse and neglect in 2019, but police and DCS closed the investigation as unsubstantiated, finding that Father was “truthful when he denied abuse and neglect,” and finding “no evidence of abuse or neglect.”
  • Jack was eight years old when he shared his wishes.

It was error for the family court to find that Jack’s wishes qualified as a change in circumstances. As a result, we need not reach the best-interests prong for modification.

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