Orders of Protection and Child Custody Orders in Arizona Family Court

When minor children are involved, order of protection cases frequently overlap with family law cases. For example, an order of protection may prohibit one parent from contacting the other parent, the children, or both, affecting both legal decision-making and parenting time. Those same parties may also have a family court case in which the Superior Court of Arizona is asked to enter orders for legal decision-making or parenting time. This writing addresses some of the interplay between orders of protection and family court child custody orders in the State of Arizona.

The Interplay Between Orders of Protection and Family Court Cases

In Arizona, an order of protection is a civil protective order designed to restrain a person from committing an act of domestic violence. See Ariz. Rev. Stat. Ann. §§ 13-3601, 13-3602(A). Under Section 13-3602 of the Arizona Revised Statutes, the court may prohibit contact, grant exclusive use of a residence, restrict contact with designated people or places, impose firearm restrictions in appropriate cases, and grant other relief necessary for protection. See Ariz. Rev. Stat. Ann. § 13-3602(G). Arizona law authorizes superior court judges, justices of the peace, magistrates, and other authorized judicial officers to issue orders of protection. See Ariz. Rev. Stat. Ann. § 13-3602(A).

In contrast, Arizona law vests jurisdiction over legal decision-making and parenting time issues exclusively in the superior court, subject to applicable jurisdictional requirements. See Ariz. Rev. Stat. Ann. § 25-402. In family law cases, superior court may be called upon to determine legal decision-making and parenting time according to the best interests of the children. See Ariz. Rev. Stat. Ann. § 25-403(A). A parent who is not granted sole or joint legal decision-making is generally entitled to reasonable parenting time unless the court finds, after a hearing, that parenting time would endanger the child’s physical, mental, moral, or emotional health. See Ariz. Rev. Stat. Ann. § 25-403.01(D). 

Orders of protection and child custody orders have different purposes, different legal standards, and are often decided by different judges, or even different courts. For these reasons, it is important to be mindful of the interplay between orders of protection and child custody orders.

The Impact of an Order of protection on Family Court Cases

The parties should never assume that a family court parenting-time or legal decision-making order automatically overrides an order of protection. If the order of protection prohibits contact with a parent or child, the restrained party must comply with the order of protection unless the court modifies or dismisses the order of protection. See Ariz. Rev. Stat. Ann. § 13-3602; Ariz. R. Prot. Order P. 21. A later, conflicting child custody order does not inherently modify the order of protection.

Moreover, when a parent obtains an ex parte order of protection and the other side has not had an opportunity to contest it, the order may prevent contact but is not necessarily a full adjudication of the facts leading to the order of protection. The restrained parent may request a hearing and have the court adjudicate the issue. See Ariz. Rev. Stat. Ann. § 13-3602(L). At that hearing, the court may dismiss, modify, or affirm the order of protection. See Ariz. Rev. Stat. Ann. § 13-3602(L).

If the court upholds the order of protection after a contested hearing, the resulting findings may have important consequences in later family court proceedings. To uphold an order of protection, the court must find a statutory basis for the protective order, including reasonable cause to believe that the defendant may commit an act of domestic violence or has committed an act of domestic violence within the relevant statutory period. See Ariz. Rev. Stat. Ann. §§ 13-3601, 13-3602(E).

A finding of domestic violence can have major implications for a family law case. Arizona law provides that joint legal decision-making shall not be awarded if the court finds there has been an act of significant domestic violence under Section 13-3601 of the Arizona Revised Statutes or a significant history of domestic violence. See Ariz. Rev. Stat. Ann. § 25-403.03(A). The court must consider evidence of domestic violence as contrary to the child’s best interests, and the safety and well-being of the child and victim are of primary importance. See Ariz. Rev. Stat. Ann. § 25-403.03(B). Arizona law also creates a rebuttable presumption against awarding sole or joint legal decision-making to a parent who has committed an act of domestic violence against the other parent. See Ariz. Rev. Stat. Ann. § 25-403.03(D). 

Domestic violence findings can also justify restrictions on parenting time. If the court finds that a parent has committed an act of domestic violence, that parent has the burden of proving that parenting time will not endanger the child or significantly impair the child’s emotional development. If that burden is met, the court must impose conditions that best protect the child and the other parent from further harm. See Ariz. Rev. Stat. Ann. § 25-403.03(F). Those conditions may include protected exchanges, supervised parenting time, counseling, substance-use restrictions, no overnight parenting time, confidentiality of addresses, or other protective conditions. See Ariz. Rev. Stat. Ann. § 25-403.03(F)(1)–(9). 

The Value of Consulting with an Arizona Family Law Attorney

The interaction between orders of protection and child custody orders is technical and highly fact specific. The answers you are seeking depends on where the order of protection was issued, whether the children are listed as protected persons, whether domestic violence findings were made, and the specific limitations included on the order of protection. An Arizona family law attorney can help determine whether modification is available, whether a hearing should be requested, whether safeguards are appropriate, or whether the proper remedy may be an appeal. If you need assistance with an order of protection case or a family law case in the State of Arizona, contact Huffman-Shayeb Law, PLLC to schedule a consultation.