Hustrulid v. Stakebake

  • May the court grant joint legal decision-making to a legal parent and a third party requesting custody rights?
  • What standard does the court apply at an evidentiary hearing regarding third-party legal decision-making and placement?

Facts and Procedural History

Hustrulid was the biological father of two minor children. He was sentenced to prison for three years and his parental rights to the children were terminated, and his sister (Stakebake) adopted both children. After he was released from prison, he continued to have a relationship with the children while in his sister’s care. When his sister cut off contact between Hustrulid and the children, he filed a petition for third-party joint legal decision-making and placement under A.R.S. § 25-409(A), or alternatively third-party visitation under § 25-40(C).

The requirements for third-party decision-making are: (1) the person filing stands in loco parentis to the child; (2) it would be significantly detrimental to be left in the parent’s care; (3) an order for decision-making or parenting time has not been entered within the last year; and (4) one of the parents is deceased, the parents are not married to each other, or an action for divorce or legal separation is pending.

Stakebake filed a motion to dismiss Hustrulid’s petition. The court initially denied the motion to dismiss, but later reversed its ruling and dismissed the petition. The court determined that Hustrulid’s petition was facially deficient because it lacked sufficient factual allegations to establish the significant detriment element. The court also cited to Chapman v. Hopkins, which held that the court only considers the significant detriment element at the initial pleading stage, not at the subsequent evidentiary hearing. Hustrulid appealed.


  • A court cannot award joint legal decision-making to a legal parent and a third-party, because it is inconsistent with the petitioner’s initial burden to establish a prima facie case that it would be significantly detrimental to leave the child in the care of the legal parent.
  • The petition must initially establish the significant detriment element to avoid being summarily dismissed. The facts may be disputed in the initial stage, but disputed facts don’t require dismissal. Well-pled factual allegations assumed true.
  • At the evidentiary hearing, the court must hear the merits of the case, including the § 25-409(A) elements as well as the rebuttable presumption that legal decision-making should remain with the legal parent. Clarifying Chapman, which only determined significant detriment at the initial pleading stage.
  • Secondary holding: An order terminating parental rights does not necessarily preclude the severed parent from filing a petition for third-party rights.

Hustrulid v. Stakebake, 1 CA-CV 21-0073 FC, 2022 WL 3097906 (App. Aug. 4, 2022).

Divorce 101: Initial Petition and Response

Please read my disclaimer.

Below is some general information about the initial petition for divorce (or legal separation) and the next steps in the process. Although it is lengthy, it covers a lot of important topics and will hopefully answer most of the questions you have at this point.

Petition for Dissolution (or Legal Separation)

The petition is the initiating document in every family court case. The petition is required to include “a simple statement” of the claims you intend to make in the case, as well as the basis for the court’s jurisdiction. Generally, I do not include a specific proposal in the petition for dividing property or paying spousal maintenance (or legal decision-making and parenting time, if applicable). This is because the discovery process may reveal additional information that could change your position on those issues. I also feel it is best to maintain the most flexibility possible at the outset of the proceeding. If there is a high likelihood that the other party may not respond to the petition at all, we may include a more detailed proposal because it makes it easier to proceed by default.

The petition is a binding legal document which you will sign under penalty of perjury. Therefore, it is important that the petition is as accurate as possible, with the understanding that we may not have all the information at this stage. Generally, the positions you take in the initial petition cannot be changed unless new information comes to light.

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2022 Amendments to Title 25

Senate Bill 1383 was signed by the governor on June 14, 2022 and becomes effective on September 24, 2022 (90 days after the legislature adjourned sine dine). The bill amends several sections of chapter 3, adds new section 25-314.01 and repeals and replaces section 25-316. All of the substantive changes are detailed below.

Most important changes for practitioners

If you’re short on time, here are the most important changes you need to know about:

  • New procedure for cancelling a legal separation: If the parties are legally separated and later reconcile, there is a new process for terminating the legal separation decree. Any property awarded to either spouse in the legal separation decree or acquired during the period of legal separation remains separate, unless stated otherwise. You also have to address what happens to property payments and support payments that were ordered in the legal separation decree but haven’t been fulfilled.
  • Formal adoption of summary consent decree process: The summary consent decree process that was being trialed in Maricopa County is now codified in § 25-314.01. But there are some changes—the filing fee is now 50% of the combined petition and response fee, and the decree can be submitted to the court earlier than 60 days (but cannot be entered until after 60 days).
  • Minor changes to temporary orders: Provisions regarding temporary orders have been moved to § 25-316. “Physical or emotional” harm has been deleted as a requirement for exclusive use of property, and there is now specific authority for exclusive use and possession of other property, not just the marital residence. The definition of “liquid assets” now includes cryptocurrency and “nonretirement funds in financial institutions.”
  • Spousal maintenance guidelines: The new § 25-319 authorizes the supreme court to establish spousal maintenance guidelines, and limits the court to awarding maintenance “only for a period of time and in an amount necessary to enable the receiving spouse to become self-sufficient.” The court may deviate from the guidelines if the application is inappropriate or unjust (like child support). The actual guidelines haven’t been created yet.

If a statute has been amended but isn’t mentioned below, it’s because the changes are only cosmetic—e.g., changing custody to legal decision-making and parenting time, or adding annulment to divorce and legal separation.

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Phillip B. v. DCS

  • When an accused party challenges a substantiated abuse or neglect finding by DCS, what legal requirements must be met before the allegation is entered into the Central Registry?

Facts and Procedural History

Phillip B. worked in a group home with children, and had worked with children in various capacities for almost 30 years. In June 2018, a minor resident of the group home became agitated, and Phillip put his hand on the child’s shoulder to calm him down, ripping his T-shirt. There was a dispute about what happened next—the child said he couldn’t breathe, but Phillip and other adult witnesses testified that Phillip never put pressure on the child’s neck.

Someone reported the incident to DCS and a caseworker investigated the allegation. Following the investigation, the caseworker found probable cause that Phillip abused the child. The DCS Protective Services Review Team (PSRT) notified Phillip that it intended to enter the substantiated abuse allegation in the Central Registry. Although not a criminal charge, an entry on the Central Registry may disqualify someone from obtaining certain licenses or certifications, or prevent the accused from working with children.

Phillip first requested a hearing before an Administrative Law Judge (ALJ). The ALJ took testimony from witnesses and found that no probable cause existed to substantiate the allegation of abuse. The ALJ’s decision was then reviewed by the DCS Director, who issued a Decision in which he partially accepted, partially rejected, and modified the ALJ’s findings and conclusions. Based on the modified Decision, the DCS Director determined that the allegation was substantiated and should be entered on the Central Registry.

Phillip filed a judicial review action in superior court. The superior court found substantial evidence to support the Director’s Decision and affirmed. Phillip then appealed the superior court’s ruling.


Before being entered on the Central Registry, an allegation of abuse or neglect must follow the substantiation process set forth in the Arizona Administrative Code:

  1. The DCS caseworker completes an investigation and finds probable cause for abuse or neglect.
  2. The PSRT notifies the accused that DCS intends to substantiate the finding and informs the accused of their right to a probable cause hearing.
  3. If the accused timely requests a hearing (within 20 days of the PSRT notification), it goes to a hearing before an ALJ.
  4. If the ALJ finds probable cause, the DCS Director reviews the ALJ’s determination and, if appropriate, accepts it.

In this case, the ALJ found no probable cause to substantiate the allegation. Therefore, there was nothing for the Director to accept. The Director may not modify the ALJ’s findings to substantiate an allegation, even if it reaches a different conclusion after reviewing the evidence.

Only if both conditions are met—the ALJ finds probable cause and the Director accepts the ALJ’s finding—is a finding substantiated and entered into the Central Registry.

Phillip B. v. Arizona Dep’t of Child Safety, 1 CA-CV 20-0569, 2022 WL 2128078 (App. June 14, 2022).

Milham v. Milham (mem.)

  • If there is a delay between a participant spouse commencing pension benefits and the entry of a domestic relations order dividing those benefits, does the alternate payee spouse have a claim to the missed payments during the interim period?

Facts and Procedural History

The parties divorced in 1998, and Wife was awarded 32.43% of Husband’s military retirement benefits upon his retirement from active service. The decree did not order Husband to pay the benefits directly to Wife, and the parties did not enter a domestic relations order at the time of divorce.

As Husband was approaching retirement, Wife contacted DFAS, the entity responsible for administering military retirement benefits. DFAS initially denied Wife’s application, instructing her to obtain a clarifying order from the trial court. After months of litigation, Husband eventually agreed to the entry of a stipulated domestic relations order dividing Husband’s military retirement.

During the interim period, Husband received 100% of his retirement benefits. The trial court entered a judgment in Wife’s favor for the payments she should have received during the interim period. Husband appealed that judgment, arguing that nothing in the decree required him to make payments to Wife directly during that period.


Unsurprisingly, the court of appeals rejected Husband’s argument and affirmed the judgment to Wife for the interim payments. The payments were Wife’s separate property under the decree, and it was no fault of Wife’s that the payments were delayed. Wife acted promptly to secure her share of the benefits prior to Husband’s retirement. Any other result would have been clearly inequitable under the circumstances.

Milham v. Milham, 1 CA-CV 21-0581 FC, 2022 WL 1801049 (App. June 2, 2022) (mem.).