Friday, 13 December 2013 17:32

Court of Appeals Reminds Trial Judges to Make Their Own Decisions

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The Arizona Court of Appeals has recently reminded Superior Court judges that they must make their own findings and make their own decisions in physical custody (parenting time) cases. In a case known as Nold v. Nold, the father moved out of the family home early in the proceedings. Prior to trial, the parties’ children lived equally with both parents. However, at trial the mother took the position that the children should live primarily with her during the school year and equally with both parents during the summer. The father asked the trial court to order that the children continue to reside equally with both parents. The trial court appointed a custody evaluator who recommended that the children live primarily with the mother during the school year and equally with both parents during the summer.

After the trial, the trial judge adopted the custody evaluator’s recommendation. In support of this ruling, the trial judge stated that "no persuasive evidence established a sound reason for deviating from the parenting time schedule [the custody evaluator] suggested." The trial judge also stated that he has considered the statutory factors that he was supposed to consider in making his decision. However, he made no specific findings regarding those factors.

In reversing the trial court, the appellate court said that when physical custody (parenting time) is an issue at trial, the trial court must make specific findings regarding the statutory factors as to the children’s best interests. Failure to make such findings is an abuse of discretion. The trial court did not make any statements in its ruling regarding the statutory factors other than to state that no persuasive evidence established a reason to not adopt the custody evaluator’s recommendation.

The mother argued that the trial court’s order was sufficient because it adopted the custody evaluator’s assessment, which discussed the statutory factors. However, the assessment was merely a trial exhibit and did not contain the trial court’s specific findings. Furthermore, the appellate court noted that the trial court appeared to use the custody evaluator’s recommendations as a baseline for custody, which indicates that the trial court delegated its obligation to independently weigh the evidence. The appellate court said, "By using the report as the baseline for custody, the family court delegated its judicial decision to the evaluator, abdicated its responsibility to decide the best interests of the children, and therefore abused its discretion." The appellate court therefore vacated the trial court’s decision.

The lesson from this case is that trial courts must make their own decisions. This means that if a custody evaluator makes an unfavorable report, you still have a chance to show the judge that the evaluator is wrong. It also means that if the judge simply adopts whatever the evaluator says in the report, you may have a good chance of a successful appeal.



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