Arizona Court of Appeals Division One Vacates Family Court’s Custody Order Because It Did Not Adequately Make Findings Concerning the Factors in A.R.S. § 25-403(B) and Allows Argument on Appeal Not Raised in the Family Court.

Father and Mother divorced and Mother obtained sole legal custody of the children.  Father moved to modify the decree to obtain sole legal custody, alleging, inter alia, that Mother failed to address the children’s counseling needs and inappropriately prescribed medication to the oldest child.  A neuropsychiatric evaluation was conducted of the oldest child. After the parties received that evaluation, Mother disclosed she would be calling Dr. Philip Stahl to critique the evaluation.  Father objected to the untimely disclosure of Dr. Stahl, but the court allowed his testimony during the evidentiary hearing.  The Court ruled that Mother would retain sole legal custody of the children.  Father appealed.

Division One addressed first Father’s claim that the trial court abused its discretion in allowing Dr. Stahl to testify.  The Court disagreed, finding that although Mother disclosed Dr. Stahl eight days before the hearing, the late timing was due in part to the late date on which the parties received the custody evaluation.  Also, Father chose not to seek a continuance to depose Dr. Stahl.  The Court noted that in general a trial court’s duty is to hear all competent evidence offered in determining a child’s best interests when making a custody decision. 

The Court went on to hold that the family court erred as a matter of law when it granted custody to Mother without making specific findings on the record about the factors set forth in A.R.S. § 25-403(B).  The Court noted that “we cannot ascertain from the court’s orders and ruling how the court weighed the statutory factors to arrive at its conclusion that Mother should retain sole legal and primary physical custody.”  Mother argued that Father had waived this issue on appeal because he did not raise it in family court.  While acknowledging this general rule, Division One noted that waiver is not an “unalterable rule” and that “mechanically applying waiver principles in this setting . . . involving the mandatory statutory findings of A.R.S. § 25-403 would inappropriately deprive the family court and all parties of the baseline information required for future petitions involving a child’s . . . best interests.” 

Judge Hall dissented on the waiver issue.  He would have held that Father waived the issue by failing to raise it below, reasoning that “the importance of [the statutory] findings is all the more reason why a litigant should be required to first provide the family court an opportunity to correct what is a significant but easily correctable procedural omission before asserting on appeal that the omission constitutes reversible error.”

Judge Winthrop, Presiding Judge, authored the decision, with Judge Irvine concurring