As noted in Part 1 of this post, the Mandatory Presumption stated in Subsection D of HB2995 (the changes to ARS 25-403.03) is:  IF THE COURT DETERMINES THAT A PARENT HAS COMMITTED DOMESTIC VIOLENCE, THERE IS A MANDATORY REBUTTABLE PRESUMPTION THAT AN AWARD OF LEGAL DECISION-MAKING OR PARENTING TIME TO THAT PARENT IS CONTRARY TO THE CHILD’S BEST INTERESTS.

So, in all cases where a finding of DV is made by the court, the abuser-parent starts with a presumption of no parenting time and no decision-making rights.   

HB 2995 makes major changes to the presumption itself.

  1. The presumption is now described as mandatory and applies to both legal decision-making and parenting time; previously, 403.03’s presumption applied only to legal decision-making.   
  2. Findings of mutual DV are significantly narrowed.    Under existing law, if both parents committed domestic violence, the presumption was not applied to either, which often eviscerated the entire effect of 403.03. Under HB 2995, mutual DV cancels out the presumption only if both parents lacked justification for their violence to a similar degree and inflicted similar injury. If one parent’s conduct and motivation were more serious, the presumption would apply only against that parent. Courts can no longer neutralize the presumption by labeling a conflict “mutual.”
  3. Courts are expressly prohibited from: (a) requiring the victim to prove the domestic violence was severe or frequent enough to justify restrictions, and (b) describing the violence as mutual unless the similarity-of-severity test is met.

Once the finding of DV is made by the court, how does the abuser-parent rebut the presumption to get any parenting time (supervised or unsupervised) or any degree of legal decision-making?

Rebuttal Factors:  Expanded Rigor to Rebut Presumption (New Subsection E vs. Prior Subsection E)

The prior version of 25-403.03(E) allowed a rebuttal of a DV finding if the abuser can show: (1) legal decision-making/parenting time is in the child’s best interests; (2) completion of a batterer’s prevention program; (3) alcohol/drug counseling if appropriate; (4) parenting class if appropriate; (5) compliance with a protective order if on supervision; and (6) no further acts of domestic violence.

HB 2995 replaces this list with more rigorous requirements for rebuttal:

  1. The court must consider the severity and frequency of domestic violence, aggravated by physical injury, emotional trauma, firearm use, strangulation, or multiple forms of coercive control.
  2. The court must consider the extent to which the parent denied, deflected, or minimized domestic violence during treatment, assessment, discovery, or courtroom proceedings.
  3. The court must consider whether the violence was severe or frequent enough that passage of time is not a mitigating factor.
  4. The court must consider whether the child has imitated any aspect of the parent’s domestic violence behaviors.
  5. A certificate of completion of a treatment program alone is not proof of rehabilitation.    Completion must be accompanied by: a privilege waiver releasing treatment records to the court and victim; proof the program was relevant and proportionate; a demonstrated understanding of how the violence harmed the child and other parent; and proof the program addressed minimization tendencies.

Practical effect: Previously, 25-403.03’s path to rebuttal was essentially a “check the boxes” for completing an anger management or batterers’ program.   That type of compliance will no longer rebut a finding of DV.   True rehabilitation after a DV finding now requires demonstrated insight by the abuser, as well as transparency into the abuser’s records. These changes meaningfully increase the difficulty of rebuttal and the time required to achieve it.

In case it hasn’t yet become clear, all changes to 25-403.03 will require significant court time, both to consider all evidence of DV to be presented by the victim, and then to allow the abuser to attempt to rebut.   Court processes will have to change to allow sufficient trial time for all aspects of these changes.

Irrelevant Factors — New Limitation on Courts (New Subsection F)

The previous version of 403.03 did not include alist of factors the court must disregard in DV proceedings.

HB 2995 directs courts to treat as irrelevant to the presumption of DV:

(1) the child’s absence from the scene of domestic violence;

(2) the child’s unawareness that domestic violence occurred; and

(3) the child’s preference for maintaining or increasing contact with the abusive parent.

All of these factors were routinely used in DV cases to argue that, even if the court found that domestic violence occurred, the child was not affected by the DV or the child still preferred to have parenting time with the abuser.

New: Graduated Burden of Proof for Parenting Time Relief (New Subsection G)

Previously, 25-403.03 did not establish different burdens of proof that the abuser must meet in order to have parenting time (supervised or unsupervised) or decision-making. If the abuser was able to rebut the presumption of DV, this opened up the possibility of parenting time and legal decision-making. This has changed.

HB 2995 creates different levels of proof an abuser must meet to gain rights regarding the child:

  • to obtain sole or joint legal decision-making or unsupervised parenting time, the offending parent must overcome the presumption (which is no decision-making and no parenting time) by clear and convincing evidence.
  • to obtain supervised parenting time, the standard is to overcome the presumption by a preponderance of the evidence.

This two-tiered level of legal proof is new and determines whether an abuser can obtain any rights to a child including the limited right of supervised parenting time.  To repeat: the default parenting time and decision-making for a parent who has been found to have committed domestic violence and who cannot overcome the presumption is effectively no parenting time at all.   Even supervised parenting time requires rebuttal proof.

Precautions — Expanded Menu with New Restrictions (New Subsection H vs. Prior Subsection F)

The previous statute included protective conditions the court may impose for protection of the victim and child, including protected exchange location, supervised parenting time (by agency or family/ household member), completion of DV intervention program, abstaining from alcohol/substance, no overnight parenting time, bond for safe return, confidentiality of address, and other conditions.

HB 2995 retains most of these protective conditions but adds several important changes:

  1. The victim may not be appointed as a supervisor, whether alone or with another person. Existing law had no such prohibition.
  2. Lay (non-agency) supervisor requirements are formalized: the supervised parent must affirm that the appointed lay supervisor will receive and read the court order, provide contact information to both parents, intervene and contact law enforcement and DCS if the child is endangered, and appear for future court proceedings and testify.
  3. Prohibition from substances isexpanded: rather than 24-hour pre-parenting restrictions on alcohol/controlled substances, the new provision requires the parent to abstain from any substance the court finds they abused, with random testing to ensure compliance.
  4. Complete suspension of access is now a listed option.  The court may suspend all access until the parent petitions to modify.  This was not expressly available under existing law.

No Joint Treatment (New Subsection I vs. Prior Subsection G)

The previous version of 403.03 prohibited joint counseling between the victim and perpetrator.

HB 2995 expands this prohibition.   The court may not order a victim (child or  parent) to join the perpetrating parent in any inpatient or outpatient treatment, counseling, or forensic assessment, whether telephonic, virtual, or in person.

The new prohibition covers forensic evaluations and all treatment modalities, which closes a gap which could have been exploited in custody evaluations or reunification therapy.

Continuing Presumption in Modification Proceedings (New Subsection J)

The previous version of the statute did not expressly address what happens to the presumption in subsequent modification proceedings.

HB 2995 provides that if a parent failed to overcome the mandatory presumption, that presumption continues to apply in any subsequent modification proceeding. Whether the presumption can now be overcome must be resolved as a preliminary matter before a modification petition filed by the abuser can proceed.   

This new provision is designed to prevent serial modification petitions filed by the abuser as a strategy to relitigate the presumption.

New Definitions

HB 2995 adds a definitions subsection that is entirely new to § 25-403.03 and the importance of its addition of “coercive control” cannot be overstated.

“Coercive control” is defined comprehensively as a pattern of violent, threatening, coercive, or emotionally abusive conduct, including: physical or sexual assault; threats to kill or injure; displaying or cleaning a firearm in a threatening manner; confinement or restriction of movement; isolation from friends and family; financial monitoring or control; stalking or harassment; demeaning conduct; threats to publish sensitive or sexually explicit material; threats to report to law enforcement; using civil litigation (including family court proceedings) to force defense of false or frivolous claims or to restrict constitutionally protected activity; damaging property; jeopardizing immigration status; forcing the victim to commit crimes; and using surveillance or tracking technology to facilitate any of the above.

“Domestic violence” is redefined to include both acts under § 13-3601(A) and coercive control. Self-defense and defense of another are expressly excluded.

Coercive control — non-physical forms of abuse — is for the first time in Arizona expressly included in the definition of domestic violence for family court purposes. The use of litigation as a coercive tool is specifically named, which is directly relevant to post-divorce abuse through the court system.   Arizona joins a small but quickly expanding group of states which include coercive control in its definitions, including California, Colorado, Connecticut, Hawaii, Kentucky, Louisiana, Maine, Massachusetts, New Jersey, Vermont, and Washington.  

See part 3 of this post for a summary of changes to 403.03 as the result of HB2995.