“Abandonment” in Arizona Child Custody Cases

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There are perhaps few greater wrongs that a parent could inflict on a child than abandonment.

While the meaning of the word may be interpreted subjectively by the child and remaining parent, our Phoenix child custody attorneys know that the term “abandonment” has a very specific and narrow meaning under Arizona law.

This definition was recently underscored in the child custody case of Calvin B. v. Brittany B., decided in June by the Court of Appeals State of Arizona Division One. In this case, the court held that one parent’s efforts to restrict the child custody/visitation rights of the other can’t be used as evidence to support an argument for abandonment in a petition for termination of parental rights.

According to court documents, here’s what happened:

Calvin and Brittany were married in the fall of 2006. Their son was born the following December. Just three months later, Brittany filed for divorce, which was granted three months after that.

The divorce decree granted Brittany sole legal and physical custody of the child, though it allowed Calvin to have liberal visitation as his schedule would allow, with the understanding that such visits were to take place at Brittany’s residence, in her presence. Calvin was not required to pay child support, but he was ordered to provide financial assistance “as required by Brittany.”

The following summer, Calvin petitioned for a child custody modification that would allow joint custody, arguing that Brittany only allowed him to see the boy once or twice a month for less than a half hour at a time. However, 10 days after that petition was filed, Brittany filed a petition requesting an order of protection against Calvin. She alleged that when she was pregnant two years earlier, Calvin had kicked her and slammed her head into a wall. She alleged that since that time, Calvin has threatened her constantly, including a specific threat made that spring to strangle her.

The court ultimately granted Brittany’s petition and held that Calvin was to have no contact with her. Any visitation with his son would have to be facilitated and in the presence of Brittany’s parents. Brittany asked that the court dismiss Calvin’s petition for joint custody, as he had failed to complete a parenting education program, as provided by the divorce decree. She also alleged he was a substance abuser with severe anger problems who had given her a total of $600 to care for the boy since he’d been born.

The court ordered Calvin to complete the parenting course, and stated that Brittany did not have to allow visitation until he had done so. He was also required to pay $265 monthly, as well as $1,500 to cover the cost of a surgical procedure for the child.

However, Calvin did none of these things. Brittany ended the visits. Calvin attempted to resume them, but this resulted in him twice being arrested for violating the order of protection still against him.

Then two months before the protection order was to expire, Brittany requested the court terminate Calvin’s parental rights on the basis of abandonment, as he had failed to have any meaningful contact with the child.

A Superior Court judge sided with Brittany, terminating Calvin’s parental rights, saying he had failed to promptly and persistently grasp the opportunities to develop a relationship with his child or assert his legal rights.

However, the appellate court disagreed and reversed this decision.

A.R.S. Rev. Stat. 8-537 governs child custody termination adjudication hearings. It holds that a decision of this magnitude must be based on “clear and convincing evidence” of the allegations made therein. A.R.S. 8-5333(B)(1) defines abandonment as:

“The failure to provide reasonable support and to maintain regular contact with the child, including providing normal supervision. (It) includes a judicial finding that the parent has made only minimal efforts to support and communicate with the child. Failure to maintain a normal parental relationship with the child without just cause for a period of six months constitutes a prima facie evidence of abandonment.”

It’s not measured by parental intent, but rather by parental conduct.

In this case, the court found that clear and convincing evidence was lacking because Brittany had repeatedly blocked visitation from Calvin. Specifically, the justices determined that contrary to the mother’s allegations, the father had throughout the child’s life sought active involvement, even though he was prevented at many turns from engaging in this. Even though he failed to uphold certain court-ordered obligations, he still sought to visit with his son.

As such, the court ordered that his parental rights be restored and the case was sent back to the lower court for reconsideration.

Contact our Phoenix child custody attorneys at (480) 833-1113.

Additional Resources:

Calvin B. v. Brittany B., decided in June by the Court of Appeals State of Arizona Division One

More Blog Entries:

Beware: Child Support is a Priority Payment, Sept. 24, 2012, Phoenix Child Custody Lawyer Blog

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