This is one person’s opinion on the biggest challenges facing Arizona trial court judges in applying the recent (June 22, 2026) changes to the family court domestic violence laws, as made in HB2995/ ARS 25-403.03.
Arizona Family Law’s substack offers an excellent form of findings template showing what must created by the court, in each and every case where domestic violence has been alleged.
As a reminder, the Governor’s signature on HB2995 included an emergency clause putting the changes in effect immediately rather than 90 days post-sine die.
Challenge One: Do these changes apply to cases already pending on June 22, 2026, or only those cases filed on or after that date?
I can’t answer this question definitively but feel that the general policy will be that courts do not apply the changes to cases that were pending but only to cases filed on or after June 22, 2026. The reason for my feeling is that the substantive changes in the statute, particularly to the burdens of proof required to establish DV and to rebut DV findings, in fairness require only prospective application. The holding in Garcia v. Browning (2007), which found a statutory change (adopted with an emergency clause provision just as in this case) would apply only to cases filed on or after the effective date. In that case the Arizona COA found that the legislature’s intent was “to make the provisions applicable as soon as lawfully possible … regardless of whether the legislature considered such an application to be prospective or retroactive.” The “operative immediately” language in an emergency clause simply means that the bill will go into effect on the date it is signed by the Governor instead of ninety days after the end of the legislative session (sine die).
But here’s a problem: whether I’m right or wrong about how the effective date will be applied, it’s going to be a huge issue if it’s applied differently by different judges. A case, a victim, an accuser, shouldn’t receive different applications just because of what court/ judge they’re assigned to. Litigants and attorneys deserve equality and a fair application of the effective date, and they deserve to know what date will be applied. Unfortunately, right now (early July 2026), it appears that everyone is guessing about the effective date until the Court of Appeals provides an answer.
Challenge Two: How the court deals with allegations of mutual DV (DV committed by both parties).
Before the changes, 403.03 stated: This presumption (against an award of legal decision-making) does not apply if both parents have committed an act of domestic violence.
So, if the court heard testimony and determined that both parties committed acts of domestic violence, the court could rule that the acts essentially offset each other, and could further find that an award of joint legal decision-making could be entered.
The new version of 403.03 says this about mutual DV: The Court may not describe the parents’ domestic violence as mutual or apply the presumption . . . to both parents, unless both parents lacked justification for their domestic violence to a similar degree and inflicted similar injury. The Court shall otherwise apply the presumption only to the parent whose conduct and motivation were more serious under the definition of domestic violence.
This change creates new levels of inquiries for the court which previously were not required: What was each parent’s “justification” for the DV he or she committed? What is “justification” in this context? Did the parents inflict similar injury? Is there a “primary aggressor”? Which parent’s “conduct and motivation” were more serious? The need to examine competing or mutual allegations of DV creates a trial within a trial, as the court must not only find that someone committed an act of domestic violence but now must compare the two instances and find which is “more serious” or “lacked justification to a similar degree”.
Challenge Three: What is a “pattern” of violent, threatening, coercive or emotionally abusive conduct (the coercive control definition)? What is “justification” for violent, threatening, coercive or emotionally abusive conduct? (See ARS 13-404 which applies the reasonable person standard to justification.) Is a pattern more than one occasion? A series of occasions in a short period of time? What if some incidents occurred years prior, with only one recent incident — is that a pattern?
Is this language unconstitutionally vague as it fails to define “pattern”?
Challenge Four: Considering the constitutionality of the statute’s new provisions when applied to specific circumstances.
Is depriving a parent of all parenting time (including supervised) constitutional? Various provisions of the new statute arguably affect 1st, 5th, and 14th Amendment rights.
Is it constitutional to require a higher level of proof (clear and convincing evidence) to receive unsupervised parenting time or legal decision-making than was required for the initial establishment of domestic violence (which requires only a preponderance of the evidence)? 403.03G.
Will this statute survive a strict scrutiny analysis? While protection of DV victims (including children) is almost certainly a compelling state interest (Prong 1 in a strict scrutiny analysis), is this statute tailored narrowly enough as it infringes on so many constitutional rights of a parent (Prong 2)?
This statute certainly is overinclusive by sweeping in constitutionally protected conduct (including speech) beyond what the compelling interest (preventing DV) arguably requires. Is it constitutionally protected to equate actual physical abuse with an (undefined) pattern of monitoring financial activity, stalking, speech (demeaning, degrading or humiliating words; threats to publish something that might be sensitive), threats to make police reports; threats to proceed with civil litigation which might later be deemed “false or frivolous” or restrictive of the other parents’ constitutionally protected activity (such as parenting time?) Surely some of these non-physical forms of abuse or emotional abuse can be legally curtailed without deprivation of constitutional rights?
Under the existing statute, a threat to file (or actually filing) to reduce the other parent’s custody or decision-making rights is coercive control. 25-403.03M(1)(k)(ii)
Does the statute give fair notice of what conduct is prohibited? Portions of the new statute should fail both for a failure to narrowly tailor what is restricted conduct, and for being void-for-vagueness.
What is “emotionally abusive” conduct? 403.03M(1) As with “pattern”, there doesn’t seem to be a definitive statement that would give the average person notice of what will be deemed domestic violence/ coercive control.
Is the 5th Amendment dead in a family court context where the accused (on advice of counsel or otherwise) chooses to remain silent pending resolution of criminal charges? The accused will lose all parenting time and decision-making until criminal charges are resolved, and cannot reasonably engage in plea or diversion negotiations because of the effect those things will have on an existing (or even potential future) family court case.
Is res judicata dead? 25-403.03C(6) allows the evidence to include (actually, requires the court to consider) other acts of DV against any person, even if the acts were previously decided, predate existing orders, or could have been previously litigated. That last clause — “could have been litigated at another time or place” — seems to be a direct override of res judicata and collateral estoppel principles, and creates its own due process exposure independent of the vagueness issue.
Challenge Five: Assuring that the true victim of DV is not unduly punished by reasonable conduct which is now considered “coercive control” (and thus DV).
It is not hard to image a situation where DV has been inflicted on an accuser, but the accuser is not able to make a prima facie (preponderance of the evidence) case establishing that DV occurred. If police reports, medical documentation, and witnesses are not provided (and they clearly don’t have to be provided to support the claim), the court is left with a true battle of credibility to sort. While the accuser is not required to supply corroborating evidence of DV (403.03C), corroboration is still valuable to the court.
NOTE: The Court findings definitely must NOT include language such as “The accuser’s allegations of domestic violence were not corroborated by witness testimony or documentary evidence.” Inclusion of this finding would directly violate 403.03C.
After hearing testimony from both parties, a court could determine that the accused is more credible than the victim and that DV has not been established by a preponderance of the evidence. So, after the victim initially fails in his/ her burden of proof, the accused may then be able to establish DV against the victim (original accuser) in the form of:
- A threat to injure (grabbing a weapon; “If you touch me again, I’ll break your arm.”)
- Locking the accused in a room for protection; or taking the accused car keys to prevent the accused from leaving the area;
- Monitoring the accused’s financial activities (to check for purchase of drugs, weapons or dangerous activities), or taking the accused’s credit cards to prevent such purchases
- Stalking the accuser;
- Calling the accuser demeaning or humiliating names (“You’re a weak man, beating up on a woman”);
- Threats to publish sensitive information (“I have videos of you drunk and I’m sending those to your mother and the rest of your family”)
- Threats to make reports to law enforcement. Consider that threats to file a police report are often made in family court cases even where there are no allegations of domestic violence, for perceived violations of parenting exchanges or more minor violations of a Parenting Plan;
- Threats to file (or actually filling) a civil action asking that the accused’s parenting time be limited, because that type of civil litigation would “regulate or restrict the other parent’s lawful or constitutionally protected activity” of exercising parenting time or legal decision-making for the child;
- Threatening to file any other civil litigation that may be later be deemed to be “false or frivolous” (but may not seem to be either at the time the threat was made);
- Damage to the accused’s property, including destruction of clothing or personal items, or vandalizing a vehicle, in retaliation for perceived DV;
- Using surveillance or tracking technology against the accused, even if the victim had a legitimate belief that surveillance was necessary under the circumstances.
A victim resorting to any of these activities, even if in response to what the victim believed at the time to be domestic violence, could result in a DV finding against the victim pursuant to 403.03M.
A legal director for the Battered Women’s Justice Project noted that taking money, breaking things, or reading a partner’s private messages could be interpreted as coercive control under some state statutes — but those same actions could also be taken by someone who is strategizing an escape.[1]
Some items (threatening to kill, stalking) are already criminal offenses with fairly settled legal definitions. Others items, including monitoring financial activity or weaponized litigation are subjective, context-dependent, and could describe ordinary divorce conduct (or at least conduct which is not unreasonable under the circumstances).
Challenge Six. Timing for evidentiary hearings in DV cases. While I’ve relegated this Challenge to #6 so far, it’s arguably the most important challenge for trial courts. It is absolutely imperative that court proceedings allow for greatly increased duration for all hearings involving any allegation of domestic violence. The court must allow the accuser sufficient time to prove the DV case; allow sufficient time for the court to weigh any allegations of mutual DV to decide if the actions are equivalent or which one is more serious; and allow the accused sufficient time to attempt to rebut the presumption of no parenting time.
Other Challenges yet to be discussed:
- Situations where there is a finding of DV, and the accused has rebutted DV by a preponderance of the evidence, but not by clear and convincing evidence. This will lead to an award of supervised parenting time, but in many cases there will be no resources to provide supervised services.
- The death of therapeutic reunification. Alienation of a child from the other parent is not within the definition of coercive control or DV. A parent who is alienating a child from the other parent is arguably now rewarded, as the estranged parent (after being accused of DV) has no recourse for family or reunification counseling.
How many parents are going to be entirely deprived of parenting time and decision-making, and how many victims are going to be subjected to retaliatory DV allegations and findings, while we wait for the higher courts to answer all these questions?
Next up: Anatomy of a Rebuttal Case.
[1] https://www.themarshallproject.org/2025/06/28/women-south-carolina-domestic-violence-coercive-control