Cheat Sheet: What’s “domestic violence” under Arizona statutes? Engstrom v. McCarthy

Cheat Sheet: What’s “domestic violence” under Arizona statutes? Engstrom v. McCarthy

In Engstrom v. McCarthy (January 9, 2018), the Arizona Court of Appeals reversed a trial court’s finding of domestic violence based on insufficient findings.    “It may well be that some of Father’s actions constituted domestic violence under the statute.  The court, however, relied on many acts that do not statutorily constitute domestic violence, and did not explain why Father’s actions amounted to ‘significant’ domestic violence.”    The COA remanded for findings as to whether Father’s actions were domestic violence as defined in ARS 13-3601A.[1]

The definition of domestic violence is contained in ARS 13-3601A.

“Domestic violence” means any act that is a dangerous crime against children as defined in section 13-705 or an offense prescribed in section 13-1102, 13-1103, 13-1104, 13-1105, 13-1201, 13-1202, 13-1203, 13-1204, 13-1302, 13-1303, 13-1304, 13-1406, 13-1425, 13-1502, 13-1503, 13-1504, 13-1602 or 13-2810, section 13-2904, subsection A, paragraph 1, 2, 3 or 6, section 13-2910, subsection A, paragraph 8 or 9, section 13-2915, subsection A, paragraph 3 or section 13-2916, 13-2921, 13-2921.01, 13-2923, 13-3019, 13-3601.02 or 13-3623 . . . . .

As the laundry list of criminal violations in this statute requires that we look up all those other statutes to determine what “domestic violence” is, I created a cheat sheet list (below) of those other statutes, as an easier way to determine the statutory definition of “domestic violence”.

A DV Bench card March 2023 was created to guide the court through an interpretation of ARS 25-403.03 and how domestic violence should be analyzed in a custody determination.

ARS §13-3601 defines domestic violence as a violation of any of the following statutes:

13-705             sexual assault of  a minor

13-1102           negligent. homicide

13-1103           manslaughter

13-1104           2nd degree murder

13-1105           1st degree murder

13-1201           endangerment

13-1202           threatening or intimidating

13-1203           assault

13-1204           aggravated assault

13-1302           custodial interference

13-1303           unlawful imprisonment

13-1304           kidnapping

13-1406           sexual assault

13-1425           unlawful distribution of images

13-1502           criminal trespass 3rd degree

13-1503           criminal trespass 2nd degree

13-1504           criminal trespass 1st degree

13-1602           criminal damage

13-2810           interfering with judicial proceedings

13-2904,          subsections A, paragraph 1, 2, 3 or 6 are: disturbing in the peace by fighting, violent or disruptive behavior; unreasonable noise; abusive or offensive language, reckless display of firearm

13-2910, subsection A, paragraph 8 or 9, are:  cruel neglect or abandonment of an animal with serious injury or cruel mistreatment of an animal

13-2915, subsection A, paragraph 3 is to prevent or interfere with use of a telephone in an emergency

13-2916           electronic communication to terrify intimidate threaten or harass

13-2921           harassment

13-2921.01      aggravated harassment

13-2923           stalking

13-3019           misconduct involving weapons in an airport

13-3601.02      aggravated domestic violence (defined as the 3rd DV offense with conviction within 84 months)

13-3623           child or vulnerable adult abuse

NOTE:   A violation of any of these statutes becomes domestic violence based on the relationship between the perpetrator and the victim.    ARS 13-3601A states that the following relationships may create domestic violence situations:

  1.  The relationship between the victim and the defendant is one of marriage or former marriage or of persons residing or having resided in the same household
  2. The victim and the defendant have a child in common
  3. The victim or the defendant is pregnant by the other party.
  4. The victim is related to the defendant or the defendant’s spouse by blood or court order as a parent, grandparent, child, grandchild, brother or sister or by marriage as a parent-in-law, grandparent-in-law, stepparent, step-grandparent, stepchild, step-grandchild, brother-in-law or sister-in-law.
  5. The victim is a child who resides or has resided in the same household as the defendant and is related by blood to a former spouse of the defendant or to a person who resides or who has resided in the same household as the defendant.
  6. The relationship between the victim and the defendant is currently or was previously a romantic or sexual relationship.  [The statute goes on to list factors to be used in determining if something was a “romantic or sexual relationship”.] 

[1] An expert witness on domestic violence had testified for Mother at trial.  It appears that the COA was concerned that the trial court may have relied on that expert’s definition of domestic violence as opposed to the statutory definition.

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