Here are the initial (past) posts about the new DV law, ARS 25-403.03:
General overview of Statute, Part 1
General overview of Statute, Part 2
DV Definitions and coercive control (Part 4)
Offender treatment programs (Part 5)
Challenges for Judges (Part 6)
And now Part 7, the Rebuttal following DV findings (Part 7). As you’ll recall, without rebuttal, the presumption is that the perpetrator/ abuser will have no parenting time and no legal decision-making concerning the children.
Here’s how the statute says rebuttal should go, with my comments and questions, inserted:
403.04 E. If a parent who committed domestic violence seeks to rebut the mandatory presumption imposed by Subsection D of this Section, the Court shall consider all of the following:
Author’s note: the court shall consider all the following, but there’s no requirement that all of the following must apply to rebuttal. The abuser may be able to achieve rebuttal using only one or a few of the following:
E1. THE SEVERITY AND FREQUENCY OF THE PARENT’S DOMESTIC VIOLENCE AGAINST ANY PERSON[1], INCLUDING AN ASSESSMENT OF WHETHER THAT VIOLENCE WAS AGGRAVATED BY ANY OF THE FOLLOWING:
Author’s note: this is a wide evidentiary standard, as the court must consider evidence of domestic violence against any person, which will include past spouses/ past relationships. Recall that “domestic violence” does require a “familiar” relationship, so violent acts which don’t involve a familiar relationship arguably are not to be considered under this section. [1] As it’s likely the case that if the abuser beat up a stranger in a bar, or had previous road rage incidents, that evidence is relevant and presumably it was considered in the initial DV case. It could be that that evidence should be mentioned again in the rebuttal consideration.
a. PHYSICAL INJURY OR EMOTIONAL TRAUMA.
b. USE OR THREATENED USE OF A FIREARM OR OTHER DANGEROUS WEAPON.
c. STRANGULATION AS DESCRIBED IN SECTION 13-1204, SUBSEC B, PARAGRAPH 1.
Author’s note: arguably if the DV findings do not include physical injury, use of a firearm or weapon, or strangulation (these are lethality factors), and that the child is not imitating the DV behaviors (#4 below), the accused can argue progress towards rebuttal just by the absence of those indications. This leaves the court to consider “emotional trauma”, which is another term not defined by the statute; and consideration of “multiple forms” of coercive control when considering rebuttal.
Is a finding that there was the use of only one form of coercive control (not “multiple”), prima facie evidence of rebuttal?
If physical injury, use of firearm/ weapon, or strangulation are present, or there is evidence that the child is imitating the abusive parent’s actions, can rebuttal be accomplished at all without significant additional evidence of rehabilitation, such as participation in an offender program?
d. MULTIPLE FORMS OF COERCIVE CONTROL.
E2. THE EXTENT TO WHICH THE PARENT DENIED, DEFLECTED OR MINIMIZED THE DOMESTIC VIOLENCE DURING TREATMENT, FORENSIC ASSESSMENT, MANDATORY DISCLOSURE, FORMAL DISCOVERY OR COURTROOM PROCEEDINGS.
Author’s note: This condition will require the accused to admit/ acknowledge the DV. If the accused continues to deny that DV occurred, is rebuttal possible? Note that acknowledgement of the DV is also a requirement for successful participation in an offender program. Can the court find that the accused’s denials or minimalization of the DV are reasonable? A finding by preponderance of the evidence means that there is a 51/49% chance that DV occurred – so is the accused’s reliance on 49% unreasonable?
E3. WHETHER THE PARENT COMMITTED DOMESTIC VIOLENCE WITH SUFFICIENT SEVERITY OR FREQUENCY THAT THE PASSAGE OF TIME IS NOT A MITIGATING FACTOR.
Author’s note: It appears that this means that, absent severity or frequency, that the passage of time IS a mitigating factor.
E4. WHETHER THE CHILD HAS IMITATED ANY ASPECT OF THE PARENT’S DOMESTIC VIOLENCE BEHAVIORS.
Note that a previous post breaks down the requirements for a “domestic violence treatment program” (“misdemeanor domestic violence offender program”), which is 403.03E(5), so those requirements and standards are not discussed in detail again. See Part 5.
What the Court Cannot Consider in Its Consideration of Either Domestic Violence or Rebuttal of DV.
The court’s findings after a hearing on alleged DV shall not include reference to any of the things listed in 403.03F:
*The child’s absence from the scene of any DV;
*The child’s unawareness that DV occurred;
*The child’s preference for reinstating, maintaining or increasing contact with the parent who committed DV. Author’s Question: what if the DV finding applies to both parents and there’s a finding that DV is of similar degree and similar injury? Should the child’s preference be considered in that case?
The third criteria, ignoring the child’s preference, is in direct conflict with 403.03A(4) which requires the court, in considering the child’s best interests, to consider the child’s preference (to the extent the child is of sufficient age and maturity).
Based on 403.03F, a child who is entirely unaware of any DV in the home and who wants to see the offending parent will potentially be deprived of any parenting time with that parent, possibly without really knowing why.
Based on 403.03I, the court is prohibited from requiring a child who is a victim to join the abuser in any type of counseling.
[1] 13-3601: To be considered “domestic violence” requires a relationship between victim and defendant which I’m referring to as “familiar” here. What it means generally is a relationship of marriage or former marriage or of persons residing or having resided in the same household; having a child in common; pregnant in common; related to defendant or spouse by blood or court order as a parent, grandparent, child, grandchild, brother or sister, or in-law or step-relationship; a child related to a former spouse; or the parties are currently or previously in a sexual or romantic relationship.