The State of Arizona considered recently an addition to its list of factors in determining the award of custody to a parent in a divorce case. This proposed addition addresses an issue that I have seen many times in my many years of managing high conflict custody cases: the false allegation of domestic violence in a contested custody case.
A false allegation of domestic violence in a custody case often takes the form of an initial filing for an Emergency Order of Protection prior to, or at the same time, that a divorce is being filed. The parent filing the falsely alleged OP believes that he/she will gain an advantage in the divorce case by having the other parent removed from the marital home and estranged from the children.
I see these false claims in OPs being made by parents actively committing Parental Alienation.
Arizona tried to provide to injured parents a remedy for these kinds of false claims by including the following important factor for the Court to consider in awarding custody:
12. WHETHER A FALSE ALLEGATION OF DOMESTIC VIOLENCE OR CHILD ABUSE PURSUANT TO SECTION 25-403.03 HAS BEEN MADE BY ONE PARENT AGAINST ANOTHER IN ORDER TO CAUSE AN UNNECESSARY DELAY, TO INCREASE THE COST OF LITIGATION OR TO PERSUADE THE COURT TO GIVE CUSTODY PREFERENCE TO ONE PARENT
My review of the current Arizona statutes suggests that the Legislature was willing to address the issue of false claims of domestic violence, but that the statute now requires a conviction for filing a false claim in order for the Court to apply this factor. In addition, the Court may consider: “whether one parent intentionally misled the court to cause an unnecessary delay, to increase the cost of litigation or to persuade the court to give a legal decision-making or a parenting time preference to that parent.”
A tip of the hat to the State of Arizona for this legislation. This kind of language in the child custody statutes may have a chilling effect toward a rational parent attempting to misuse Orders of Protection to gain an advantage in a custody case.
In my view, an irrational or pathological parent that is seeking to alienate children from a loving, healthy parent will alienate and file false claims of domestic violence, no matter the language of any statute. It’s my job as your attorney to aggressively knock out these false claims, and to vigorously demonstrate to the Court that no parent that alienates their children from the other deserves to have the custody of the children.