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Findings on domestic violence and child abuse required in custody case

In the case of Christopher K. v. Markaa S., the Court of Appeals of Arizona vacated the superior court’s order denying the father’s petition for modify child custody and relocate the children to his home in Minnesota. The appellate court remanded the case for a new hearing to make findings determining whether the stepfather’s conduct had a deleterious effect upon the children and was domestic violence and child abuse under Arizona law.


The mother and father were married in 1996 and had two sons together, born in 1999 and 2002. In 2006, the father moved out of the family home in Minnesota, the mother subsequently moved with the children to Arizona, and the father filed for divorce in Minnesota. The Minnesota court issued a dissolution decree in 2008 which granted joint legal custody of the children to both parties. Sole physical custody was awarded to the mother and the father was awarded parenting time. The mother subsequently remarried and domesticated the Minnesota decree in Arizona in 2009.

In 2011, the father filed a petition seeking temporary and permanent modification of the custody orders and relocation of the children from the mother’s residence in Arizona to his residence in Minnesota on the ground that the mother failed to protect the children from abuse by their stepfather.

The request for temporary modification of custody was denied on the basis that the children were “not in serious danger or [imminent] risk of harm.” The court ordered a full evidentiary hearing and appointed a custody evaluator.

The custody evaluator conducted interviews and observed the children’s interactions with the parents, and submitted a report to the court which report recommended awarding custody to the father. The custody evaluator, who was the principal witness at the hearing, later testified that she no longer knew what she would recommend because the stepfather and the mother were making progress in family counseling. The mother and stepfather did not testify at the hearing.

The superior court’s decision, which denied the father’s petition, adopted the custody evaluator’s report as the court’s findings.

The decision of the Court of Appeals

The Court of Appeals vacated the superior court’s decision. Due to evidence of physical discipline of the children, express findings were necessary to determine whether the discipline rose to the level of domestic violence. If domestic violence is found, this factor is given “primary importance” under an Arizona statute and the superior court must treat the evidence as contrary to the best interests of the child.

The appellate court noted that the stepfather admitted to certain conduct that a court might construe as acts of domestic violence and child abuse, including throwing the oldest child against a wall and placing him under a cold-running shower and purposefully hitting the younger child on the head with a shovel handle. Other alleged acts by the stepfather, in forcing a child to eat vomit and sleep in a bathtub, could also be considered domestic violence and child abuse, if proven , said the court.

The Court of Appeals also held that it was improper for the superior court to simply adopt the custody evaluator’s “findings” in its order without making its own separate findings. The superior court did not describe the evidence supporting the report or explain its reasons for accepting the report as correct.

Individuals facing issues relating divorce, child custody or other domestic relations matters are urged to consult with a competent attorney, experienced in such matters for the protection of their legal rights.