In Zandell v. Zandell, an unpublished memorandum decision, the Arizona Court of Appeals reversed and remanded family court orders modifying legal decision-making and parenting time.

The parents were divorced in 2008 by consent decree where they agreed to joint legal decision-making and a parenting time schedule. In 2018, both parents petitioned to modify legal decision-making and parenting time.

The family court set an evidentiary hearing and instructed the parties to submit pretrial statements no later than seven days before the trial. Its instructions warned the failure to comply could result in “the imposition of any and all available sanctions pursuant to [Rule 76.2] Arizona Rules of Family Law Procedure, including proceeding to hear th[e] matter by default based upon the evidence presented by the appearing party.”

Neither party was represented by an attorney. Mother filed a pretrial statement; Father did not and claimed it was because he was traveling. The family court found that this explanation did not constitute good cause for failure to comply with its orders and held Father in default.

The family court dismissed Father’s petition to modify legal decision-making and parenting time, and explained that its decision meant that only Mother could present evidence and testimony related to her petition.

After the trial, the family court awarded sole legal decision-making to Mother and ordered Father’s parenting time to be supervised by a therapeutic interventionist.

Both parents retained attorneys for Father’s appeal where he argued that the family court denied him due process when it held him in default. Due process is the right to an “opportunity to be heard … in a meaningful manner, through the presentation of evidence and testimony and confrontation of adverse witnesses.”

While family courts have authority to impose sanctions against litigants, including default and dismissal of claims or defenses, the severity of sanctions must be balanced against the consequence, particularly in cases that involve child custody.

The Court of Appeals found that default was an unwarranted sanction that affected the family court’s ability to consider the best interests of the children. Because it was unable to conclude from the record whether Father was afforded due process, it reversed the orders modifying legal decision-making and parenting time and remanded the case back to family court.