Research Directorate, Immigration and Refugee Board of Canada, Ottawa

1. Arizona Legislation and the Best Interests of the Child

A 2010 document summarizing state laws with regard to the "best interests of the child," produced by the US Department of Health and Human Services, states that "[a]ll states … have statutes requiring that the child's best interests be considered whenever specified types of decisions are made regarding a child's custody, placement, or other critical life issues" (US Mar.2010, 1). In Arizona, "[s]tatutes … provide more general guidance and give more discretion to the courts to make best interests determinations" (ibid., 4).

Under Arizona legislation, in all cases determining the custody of a child, "[t]he court shall determine legal decision-making and parenting time, either originally or on petition for modification, in accordance with the best interests of the child" (Arizona 2012, Sec. 25.403A). The Arizona Revised Statutes Annotated (ARS) notes that, in general, "[p]rimary, paramount, and controlling consideration in custody cases is [the] welfare of child" and that "[t]here is no hard-and-fast rule as to what will best serve [the] welfare and interests of the child and all circumstances which may affect that determination must be considered" (ARS 2013, para.13). A Clinical Professor of Law at the James E. Rodgers College of Law at the University of Arizona said, in a telephone interview with the Research Directorate on 19 March 2013, that courts will act in accordance with the best interests of the child.

2. Mechanisms for the State of Arizona to Take Custody of a Child

The Arizona Marital and Domestic Relationsstatute states that

[t]he court may modify an order granting or denying parenting time rights whenever modification would serve the best interest of the child, but the court shall not restrict a parent's parenting time rights unless it finds that the parenting time would endanger seriously the child's physical, mental, moral or emotional health (Arizona 2012, Sec. 25.411J).

According to Marriage Dissolution Practice, in Arizona "[t]here is a presumption that a child's best interests will be served by giving custody to a parent unless parental unfitness is clearly shown" (2013, 2). The Arizona Marital and Domestic Relations statute states that

[an Arizona court] has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse (Arizona 2012, Sec. 25.1034A).

The Clinical Professor of Law at the University of Arizona stated on 19 March 2013 that, if the mother cannot accept sole custody of a child, the court will decide what is best for the child and that the state could take custody of the child. He also stated that there are no automatic consequences in terms of custody decisions unless there is a safety issue, in which case care of the child would not be given to a parent deemed to be a risk to them.

In a follow-up interview with the Research Directorate conducted on 10 April 2013, the Clinical Professor of Law elaborated that

what would happen is assuming the state intervened, then they would evaluate the father’s situation because there may be reasons why the father only has visitation. On the other hand if there’s no reason to keep the child away the practice is have the father seek a custody order.

The information in the following two paragraphs comes from the interview conducted with the Clinical Professor of Law at the University of Arizona on 10 April 2013. The Professor stressed that, constitutionally, the state cannot make an assumption that someone is not a fit parent without an evaluation. Additionally, he noted that even in cases where a child has been removed by the state for safety reasons, under federal law there is an obligation to reunite the family unit, barring exceptional cases such as abuse, neglect, or the absence of one parent due to incarceration or any other reason. However, "in nine out of ten cases" the goal is to work towards resolving the issue, whether it is drug addiction, violence, or any other issues, within a year. The state may determine that the child should be in the custody of a parent (even if that parent lacked a custody order at that time), that the order may be amended by the courts, and that, in the eyes of the court, if the custodial parent is not in the state that would make them an unfit parent. Furthermore, the decision regarding in whose care a child would permanently be held would be decided by the courts unless the parents could agree on a long-term solution. Additionally, the state would first look for a relative with whom to place the child, and would only look for an alternative if one were not available.

The Clinical Professor of Law also stated that, if the state has intervened in a case, and if that intervention has been ratified by a court, then the state would have official care or custody of a child until a decision is made. In Arizona, a child would be assigned a guardian or a lawyer to safeguard that child's interests.

3. Reasonable Fear of Physical Violence and Domestic Violence

Under Arizona legislation,

[t]he court shall consider evidence of domestic violence as being contrary to the best interests of the child. The court shall consider the safety and well-being of the child and of the victim of the act of domestic violence to be of primary importance. The court shall consider a perpetrator's history of causing or threatening to cause physical harm to another person. (Arizona 2012, Sec. 25.403.03B)

In addition, the Marital and Domestic Relationsstatute also states that

[i]f on the testimony of the petitioner or any other witness, the court finds that the child is imminently likely to suffer serious physical harm or be removed from this state, it may issue a warrant to take physical custody of the child. (ibid., Sec. 25.1061B)

The ARS refers to case law that set the precedent that

[w]hen the parent that committed [an] act of domestic violence has not rebutted the presumption that awarding custody to that parent is contrary to the best interest of the child, the court need not consider all other statutory best-interest factors. (ARS 2013, para.18.5)

The information in this paragraph was provided by a Clinical Professor of Law at the University of Arizona in the 19 March 2013 telephone interview with the Research Directorate. Courts are beginning to understand the negative effects of domestic violence on children, even if they are not the targets of that violence, and that the custodial presumption in Arizona is that, if a parent has engaged in domestic violence, they are not a good parent The state can investigate whether the mother was at risk of domestic violence, even if the mother is not resident in the state. If the state has taken custody of the child, the state would give the father a chance to remedy his conduct.

In a follow-up interview, the Clinical Professor of Law stated that children will not be placed with violent or abusive relatives, or, for example, relatives who may kidnap or otherwise pose a risk to the child, but a child may be placed with relatives of an abusive or violent parent, as long as the state believes that those relatives would provide a safe environment for the child (10 Apr. 2013).

Further information on the outcome of a decision in which the child has a reasonable fear of physical violence or death at the hands of one parent could not be found among the sources consulted by the Research Directorate.

4. Recognition of Custody Orders from Other Jurisdictions

The Marital and Domestic Relationsstatute of the State of Arizona includes the following information on the recognition of orders from other jurisdictions:

A court of this state shall accord full faith and credit to an order that is issued by another state, that is consistent with this chapter and that enforces a child custody determination by a court of another state unless the order has been vacated, stayed or modified by a court having jurisdiction to do so under article 2 of this chapter (Arizona 2012, Sec. 25.1063).

The Clinical Professor of law at the University of Arizona stated that the State of Arizona would honour an out-of-state custody order if it is a valid order, if there is no superseding order, and if there is reason to believe not honouring it would be a danger to the child (19 Mar.2013).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

Arizona. 2012. Title 25: Marital and Domestic Relations. <http://www.azleg.gov/ArizonaRevisedStatutes.asp?Title=25> [Access date: 18 Mar.2013]

Arizona Revised Statutes Annotated (ARS). 2013. "Legal Decision-Making and Parenting Time (Refs and Annos)." New York City: Thomson Reuters. Sent by a representative of the Arizona Superior Court Law Library to the Research Directorate.

Marriage Dissolution Practice. 2013. "Award of Legal Decision-Making and Parenting Time." Edited by Charles Marshall Smith and Irwin Cantor. Arizona Practice Series. New York City: Thomson Reuters. Sent by a representative of the Arizona Superior Court Law Library to the Research Directorate.

Clinical Professor of Law at the James E. Rodgers College of Law, University of Arizona. 10 April 2013. Telephone interview.

_____. 19 March 2013. Telephone interview.

United States. March 2010. Department of Health and Human Services. Determining the Best Interests of the Child: Summary of State Laws. <https://www.childwelfare.gov/systemwide/laws_policies/statutes/best_interest.pdf> [Access date: 19 Mar.2013]

Additional Sources Consulted

Oral sources:Attempts to contact representatives of the following organizations were unsuccessful: Arizona – Child Protective Services, Department of Economic Security.

Representatives of the following organizations could not provide information: Arizona – Department of Public Records; Arizona State University.

Internet sites, including:ArizonasChildren.org; ecoi.net; Equality Arizona; The Hague Domestic Violence Project; Havasu News; Legal Information Institute; Scoresby Family Law; United States – Department of Health and Human Services; United Nations – Refworld; Women's Refugee Commission.