The Overlap Between Orders of Protection and Child Custody Orders

In Arizona, when minor children are involved, order of protection cases commonly overlap with family law cases. An order of protection may restrict one parent from contacting the other parent, the children, or both, dramatically affecting that parent’s ability to exercise legal decision-making and parenting time. Often times, 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 the limitations on the Superior Court of Arizona’s authority to modify an existing order of protection.

Seeking Orders of Protection in Justice Court or Municipal Court

When an order of protection case in justice court or municipal court involves a minor child and the lower court learns that a qualifying family court case is pending in the Superior Court of Arizona, the lower court should transfer the order of protection case to the superior court, and the matter proceeds as though it had originally been filed there. See Ariz. Rev. Stat. Ann. § 13-3602(P); Courtney v. Foster, 334 P.3d 1272 (Ariz. App. 2014).

Because the superior court has jurisdiction over legal decision-making and parenting time, a municipal court or justice court cannot decide parenting time or legal decision-making in a family law case. See Ariz. Rev. Stat. Ann. §§ 25-402, 25-403, 25-403.01; Courtney, 334 P.3d at 1275. In Courtney, the Court of Appeals explained that the rules governing order orders of protection recognize the primacy of superior court in custody and parenting-time matters, and that orders of protection should not be used to decide legal decision-making or parenting-time issues. Courtney, 334 P.3d at 1276.

Even when no child custody case is pending in superior court, if the requested order of protection would functionally decide a child custody issue, a lower court may decline to include the minor child on the order of protection. In such cases, if appropriate, the lower court may grant the order of protection for the requesting parent only while suggesting that the requesting parent seek child-related relief in superior court. Other times, when no family court case is pending, the lower court may grant the order of protection and include the minor child as a protected person if the statutory requirements are met. See Ariz. Rev. Stat. Ann. § 13-3602(E), (G).

When May the Family Court Modify an Order of Protection?

The family court’s authority to modify an order of protection depends in part on whether the order of protection has been affirmed after a contested hearing and whether the court affirming the order of protection was the Superior Court of Arizona. Arizona law gives a restrained party the right to only one contested hearing while the order of protection is in effect. See Ariz. Rev. Stat. Ann. § 13-3602(L). After that hearing, the court may dismiss, modify, or affirm the Order of protection. See id. Arizona statutes, however, leave open a practical question: after such a hearing, does the family court retain authority to later modify the order of protection in order to facilitate compliance with legal decision-making or parenting-time orders?

The Arizona Court of Appeals partially addressed this issue in Courtney v. Foster. See Courtney v. Foster, 334 P.3d 1272 (Ariz. App. 2014). In Courtney, a father obtained an order of protection from a municipal court that included the parties’ child as a protected person. See id. at 1273. The municipal court later held a hearing and modified the order of protection. See id. The mother later filed for divorce and requested temporary parenting time from the Superior Court of Arizona. See id. The Superior Court of Arizona believed it lacked authority to modify the protective order because the mother had already had her one statutorily permitted hearing. See id. at 1273-74.

The Arizona Court of Appeals disagreed. See id. at 1274-76. It held that the Superior Court of Arizona had authority to address parenting time and, if warranted, modify the order of protection. See id. at 1275. The court relied on the Superior Court of Arizona’s statutory authority over child custody matters, including temporary orders under Section 25-404(A) of the Arizona Revised Statutes, and the domestic-violence parenting-time framework in in Section 25-403.03(F) of the Arizona Revised Statutes. See id. at 1274-76. The Arizona Court of Appeals explained that the superior court could impose protective conditions, such as supervised exchanges, supervised parenting time, counseling, confidential addresses, or other safeguards necessary to protect the child, the other parent, or other household members. See id. at 1275.

However, the Arizona Court of Appeals later clarified a major limitation on the family court’s authority to modify an order of protection. See Vera v. Rogers, 433 P.3d 1190 (Ariz. App. 2018). In Vera v. Rogers, the father sought parenting time in a family court case while an order of protection barred contact with the mother and children. See id. at 1191. The Superior Court of Arizona in the family case entered temporary parenting time orders. See id. at 1191-92. A different judicial officer in Superior Court of Arizona later held a contested hearing on the order of protection and affirmed the order in full, including the children as protected persons. See id. at 1192.

The father then asked the Arizona Court of Appeals to direct the family court judge to amend the order of protection so the parenting time order could take effect. See id. The Arizona Court of Appeals denied relief. See id. at 1196. The key distinction was that, unlike in Courtney, the order of protection had already been affirmed after a contested hearing by a superior court judicial officer. See id. at 1195-96. The Arizona Court of Appeals reasoned that although the Superior Court of Arizona may act to harmonize parenting-time and protective orders in appropriate circumstances, that authority is limited once another judicial officer of the Superior Court of Arizona has affirmed the protective order after an evidentiary hearing. See id. 1195. To allow a different judge of Superior Court of Arizona to later modify the affirmed order of protection would amount to horizontal appellate review, which Arizona law does not permit. See id. at 1196.

The Bottom-Line Concerning Modifications

The Superior Court of Arizona may be able to modify an order of protection involving minor children when the court finds that parenting time or contact can occur without endangering the child or significantly impairing the child’s emotional development, and either:

• the order of protection has not yet been challenged and upheld after a contested hearing by a judicial officer of Superior Court of Arizona, or 

• the contested hearing and order upholding or modifying the order of protection took place at the justice court or municipal court level, and the matter is later transferred to the Superior Court of Arizona under Section 13-3602(P) of the Arizona Revised Statutes. 

Why You Should Consult with an Arizona Family Law Attorney

The modification of order of protection is technical and highly fact specific. The answer may depend on where the order of protection was issued, whether it was transferred, whether a contested hearing has already occurred, which court held the hearing, whether the children are listed as protected persons, whether domestic violence findings were made, and whether an appeal deadline is running. 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.