An interim legislative committee is crafting pioneering child custody measures that promise to result in a collision between groups advocating for victims of domestic violence and advocates for fathers' rights.
The most dramatic changes codify the concept of coercive control in domestic violence, which is a pattern of behavior used to dominate an ex-spouse, the other parent or intimate partner. A judge would determine custody and visitation based on whether there is a pattern of controlling behavior by one or both of the parents.
"The idea here is that a lot of domestic violence isn't necessarily charged, but also isn't necessarily a crime," said Elizabeth Ditlevson, deputy director of the Arizona Coalition Against Domestic Violence. "So, if I don't let you know anything about our finances, that's not a crime, but it might show the kind of partner I am, how I'm controlling, how my behavior towards the other partner may be (harming) the children in the home."
Only Colorado and Illinois have aspects of coercive control in their laws regarding child custody procedures, Ditlevson said.
Joan Meier, a George Washington University law professor who consulted on the proposed legislation, said the concept is "cutting edge" and there is universal agreement among experts in the field of domestic violence and advocates for child custody that coercive control separates true and false allegations, assesses serious danger and predicts future implications.
"Coercive control isn't in the statutes and isn't in the cases and yet it's what everyone knows on the ground is the key dynamic that makes a relationship really dangerous or a parent potentially really dangerous," Meier said. "Everyone is talking about it in literature and in the policy arenas."
Fathers' rights advocates say the laws will lead to an increase in false allegations in custody disputes.
Brent Miller, who is part of a loose-knit network opposed to the coercive control language, said vengeful exes can twist any one of the laundry list of coercive control behaviors in the proposal to their advantage in a custody battle.
Ditlevson said the reason coercive control language is better placed in domestic relations statutes is because a judge would be in a better position to examine a pattern of facts throughout an entire case than a police officer responding to a domestic violence incident.
Meier said the coercive control provisions would actually help in sorting through false allegations.
"Yes, anyone can lie about anything, but it's pretty hard to paint a completely false picture of coercive control if you haven't experienced it," she said.
In weighing custody issues under the proposal, the court would first look at whether any "special circumstances" exist: violence toward the partner or child abuse; substance abuse; crimes committed under Arizona's Dangerous Crimes Against Children laws; and convictions for violent offenses or a series of felonies.
If a judge finds there has been substantiated domestic violence, then he would look at the coercive control section, which so far lists 18 various tactics and behaviors that are used in controlling the other person in a relationship. They include eavesdropping on communications, forging the other person's signature, keeping the person from participating in social activities or keeping them away from family and friends.
"It could show the difference between maybe a one-time (domestic violence) incident, which the courts would weigh less heavily, and a person who is engaging in a pattern of control over their partner, someone who is abusive, controlling, dangerous, and considering those factors in child custody," Ditlevson said.
An alphabet soup of committees and subcommittees has been crafting the statutes since October 2008. The Domestic Relations Committee, chaired by Sen. Linda Gray, R-Glendale, assigned the task of writing the statutes to the Ad Hoc Custody Workgroup, which completed its work in April and turned it over for review to the Substantive Law Workgroup, a regular subcommittee of the Domestic Relations Committee.
Eventually, the Domestic Relations Committee will vote on the language and pass it on to the Legislature. The goal is to approve the draft legislation by October and introduce it as a bill in the next regular session.
Steven Wolfson, chairman of the Substantive Law Workgroup, said one of the goals of rewriting the laws was to make them simple so people who are representing themselves in court can follow them, though the proposed language in some ways has become more complex and would add a substantial amount of language to the child custody statutes.
"So the question is, is all this language necessary, will the judges be able to digest all this language, will it help judges make their decisions, will it help families work their way through this process?" he said.
Wolfson said most of the wording that came out of the ad hoc committee involves the "special circumstances" and when they apply, what the court is supposed to do when they do apply, what parents need to prove and what they need to argue in making a case.
"It's a continuing discussion. We're meeting in June, July, August and September and may even meet beyond that to figure what is the best thing to do," Wolfson said.