The parties were married in 2004 and divorced by default decree in 2012. The decree awarded Mother sole legal decision-making and primary residential custody (parenting time) of the children. The decree did not establish child support or divide community property.
Over the next few years the parties modified legal decision-making and parenting time multiple times and in December 2017, the parties agreed that Father would be the primary residential parent until 2020 when the children would return to Mother’s primary care for four years after that.
The same month Mother filed an emergency petition for modification where she alleged that Father tested positive for several substances in a recent drug test. The parties temporarily agreed that the children would return to Mother’s primary care.
During a four-day evidentiary hearing, the family court ordered both parents to submit to immediate drug testing. Father tested positive for amphetamine and methamphetamine. The court ordered the children to live primarily with Mother and awarded her sole legal decision-making. Father’s parenting time was contingent upon compliance with additional orders related to substance abuse treatment. The family court also ordered Father to pay Mother’s attorney’s fees because it deemed his positions to be “far more unreasonable” than Mother’s positions.
The Court of Appeals struck Father’s first two attempts to submit an opening brief for failure to comply with the Arizona Rules of Civil Appellate Procedure. Similarly, Mother’s answering brief failed to address the substance of Father’s appeal. The Court of Appeals could have treated this as confession of error and granted Father’s appeal.
Father also failed to provide transcript from the four-day trial. Whenever a party files an appeal without the necessary transcripts, the Court of Appeals assumes the record supports the trial court’s findings and conclusions.
As we regularly reiterate, appeals are highly technical proceedings where seemingly small mistakes can have serious consequences. Anyone who is considering filing an appeal is strongly encouraged to consult with an experienced appeals attorney.
Father alleged that the family court judge was biased against him. Under Arizona law, judicial bias “generally must arise from an extra-judicial source and not from what the judge has done in his participation in the case.” This means that adverse rulings are never enough to prove judicial bias. Obviously this tremendous burden of proof explains why claims of judicial bias almost never succeed.
Here, the Court of Appeals found that Father presented no evidence to support his claim of bias. It also rejected Father’s due process claim and noted that Father fully participated in the four-day trial so he was given a meaningful opportunity to be heard.