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WHOSE CUSTODY CASE IS IT, ANYWAY?

By David Sheffield, Esq.

It's no secret that divorcing parents are often in conflict with one another over custody issues, but there's another, more fundamental tension in Arizona family law cases which came up in the 2014 case of Bulos-Simpkins v. Simpkins. On the one hand, the court is there to safeguard the interests of the minor children, and on the other, the court is there to resolve the parents' disputes. So what is a judge to do when what the parties agree to doesn't seem to be what's best for the child?

Nathalie and Richard Simpkins were considering divorce in early 2012 and before filing, Nathalie prepared some agreements about division of property as well as decision-making and parenting time for the children. Richard signed the agreements, but when the time came for him to file his response, he realized that Nathalie had not been honest about her finances and so Richard asked the court to ignore the agreement because he had only consented as a result of fraud.

The court agreed with Mr. Simpkins, and ruled that Ms. Simpkins's proposed agreements were neither fair nor in the best interests of the couple's children. Instead of approving the agreement which would have given Ms. Simpkins the right to relocate the children to California and Mr. Simpkins parenting time twice a month, the Court made Mr. Simpkins the primary parent and gave him presumptive decision-making authority.

Ms. Simpkins appealed, arguing that the family court had no right to override the agreements she and Mr. Simpkins had reached about their finances and their children. Mr. Simpkins, on the other hand, argued that the agreements were fraudulent and the trial court had every right to set them aside.

The appeals court sidestepped the larger question of when a trial judge's duty as a fair and impartial arbiter of the parties' rights ends and the judge's duty as an agent of the state tasked with protecting the welfare of children begins and instead focused on the quantity and quality of the evidence. The appeals court determined that the trial court had not been specific enough in its findings to justify its decision about legal decision-making authority and parenting time and ordered the case back to the family court to take another look and make more specific findings.

It's important to note that this case was a memorandum decision and therefore doesn't create precedent for future decisions, but the case should still serve as a warning to parties and practitioners that it's necessary to be cautious about agreements even before the case begins. As with most legal matters, proper advice before the decision is made is critical.

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