Opinion text
NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Matter of:
KELLY D. ATCHISON, Petitioner/Appellant,
v.
JASON D. ATCHISON, Respondent/Appellee.
No. 1 CA-CV 25-1029 FC
FILED 09-17-2026
Appeal from the Superior Court in Maricopa County
No. FC2021-070980
The Honorable Jillian Francis, Judge
AFFIRMED
COUNSEL
Colburn Hintze Maletta, PLLC, Phoenix
By Henry Alzate
Counsel for Petitioner/Appellant
Novo Law PLLC, Chandler
By Caitlin L. Andrade
Counsel for Respondent/Appellee
ATCHISON v. ATCHISON
Decision of the Court
MEMORANDUM DECISION
Chief Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Andrew J. Becke and Judge James B. Morse Jr. joined.
H O W E, Judge:
¶1 Kelly D. Atchison (“Mother”) appeals the superior court’s
denial of a request to modify parenting time. For the reasons below, we
affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother and Jason D. Atchison (“Father”) married in 2013 and
share two minor children born in 2018 and 2021. In September 2021, Mother
petitioned for dissolution of marriage. The next month, Mother and Father
agreed to joint legal decision-making and a shared parenting time schedule
under Arizona Rule of Family Law Procedure 69. In January 2022, the
family court entered the consent decree. It awarded the parties joint legal
decision-making authority but unequal parenting time; per the parties’
agreement Father would have the children during the week, from Sunday
at 6 p.m. through Friday at 6 p.m., and Mother would have them during the
weekends, from Friday at 6 p.m. through Sunday at 6 p.m.
¶3 In August 2023 Mother petitioned to modify, alleging a
change in circumstances. Mother requested equal parenting time, claiming
that Father had moved farther away and that Mother had made significant
life improvements following the decree. The family court denied the
petition, finding that Mother had not alleged a substantial and continuing
change in circumstances. Mother amended the petition, again claiming that
Father’s move was a substantial and continuing change in circumstances
warranting modification because it meant the children had to switch
daycares and school districts. Mother also alleged significant
improvements to Mother’s life, such as progression in therapy, settling into
a career path with a set schedule, and living in a four-bedroom home.
¶4 Father requested that Mother provide mental health records
for the previous ten years. Mother refused, instead providing letters from
mental health providers. The court held a hearing and ordered Mother to
“disclose all mental health records since the entry of the parties’ consent
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Decision of the Court
decree relating to self-harm behaviors and suicidal ideation to the Court for
an in-camera review.”
¶5 After an in-camera review of fifteen items provided by
Mother, the court found that thirteen of them referenced self-harm
behaviors and suicidal ideation after the decree. The court found that the
children’s best interests outweighed any privilege Mother had regarding
those records and ordered their production. Two months later, Father
moved the court to release the relevant mental health records. The family
court noted that it had “already issued a ruling regarding the records that
it found discoverable” and explained that should Mother “refuse to comply
with discovery and disclosure,” Father could seek a remedy under the rules
of procedure. The court ruled that it would “not order [Mother] to release
the records, but [it] may draw a negative inference from [Mother]’s failure
to disclose.”
¶6 At trial on Mother’s petition, both Mother and Father testified
and submitted exhibits. Mother testified to having PTSD but “stable”
mental health “[i]n regards to the children.” But Mother also admitted to
some “passive suicidal ideation” and explained that “because I co-parent
with [Father], the only way I will have peace is if one of us dies.”
¶7 Father testified that he encouraged Mother to find a therapist
to help Mother “work through [] what they were feeling.” He testified that
the parents previously had “very open and honest conversations with each
other regarding the kids” and introduced messages showing Mother was
initially flexible to “following [an] unofficial parenting plan” and making
minor changes “to accommodate special events.” But he explained that
once litigation began, their co-parenting relationship changed “like a door
slammed” or a “[w]all went up” and Mother revoked the unofficial
parenting plan they had been following. Father also introduced messages
from Mother describing the children as “a huge trigger” of trauma. Father
confirmed that his settlement offer would allow Mother’s preferred
parenting plan in exchange for confirmation that Mother was still attending
therapy but that he “expressly stated that [he was] not interested” in
therapy notes, only whether Mother remained enrolled in therapy.
¶8 The court ruled that Mother showed a change of
circumstances but that equal parenting time was not in the children’s best
interests. It noted that “Mother still experiences suicidal ideation,” and
“Mother does not always put the children’s best interests before Mother’s
conflict with Father.” The family court then ordered a modified parenting
schedule, with Father having the children from Monday at 7 a.m. to Friday
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Decision of the Court
at 1 p.m. and Mother having the children from Friday at 1 p.m. to Monday
at 7 a.m. This gave Mother more parenting time, but not equal parenting
time.
¶9 Regarding the parties’ competing attorney’s fee requests, the
court found that Mother “acted unreasonably in the litigation.” The court
stated that “Mother included their improved mental health as a basis to
modify the prior parenting time orders and then refused to provide the
records. The Court does not believe that Mother disclosed all mental health
records the Court ordered.” It awarded Father his attorney’s fees and costs
under A.R.S. § 25-324(A).
¶10 Mother moved the court to reconsider the ruling, arguing that
the court should “reassess the findings regarding Mother’s mental health to
reflect [Mother’s] improvements” and grant Mother more parenting time.
The court denied the motion. Mother timely appealed from the order
modifying parenting time and we have jurisdiction. See A.R.S. §§ 12-
120.21(A)(1) and -2101(A)(1).
DISCUSSION
¶11 Mother argues that the superior court erred by denying equal
parenting time. We review an order affecting parenting time for an abuse
of discretion. Engstrom v. McCarthy, 243 Ariz. 469, 471 ¶ 4 (App. 2018). “An
abuse of discretion results when the record is devoid of competent evidence
to support the decision, or when the court commits an error of law in the
process of reaching a discretionary conclusion.” Id. (cleaned up).
¶12 When considering a petition to modify parenting time, the
family court must first determine whether a change in circumstances that
materially affects the child’s welfare has occurred. Christopher K. v. Markaa
S., 233 Ariz. 297, 300 ¶ 15 (App. 2013). “If the court finds such a change in
circumstances, it must then determine whether a change in custody would
be in the child’s best interests.” Id. To do so the court should consider “all
factors that are relevant to the child’s physical and emotional well-being”
and make specific findings about those factors and the “reasons for which
the decision is in the best interests of the child.” A.R.S. § 25-403(A), (B). “As
a general rule equal or near-equal parenting time is presumed to be in a
child’s best interests.” Woyton v. Ward, 247 Ariz. 529, 531 ¶ 6 (App. 2019)
(citation omitted). The family court, however, has discretion to
determine parenting time based on all the evidence before it. Id. at 531 ¶ 5.
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I. The Family Court Did Not Abuse Its Discretion by Denying Equal
Parenting Time.
¶13 Mother argues the family court’s parenting time ruling relied
on the statement that “Mother still experiences suicidal ideation” and that
this “present-tense finding is clearly erroneous and unsupported by the
record as it existed at the time of trial.” Mother attests to showing
“substantial evidence” of mental health improvement and argues that the
family court’s ruling “did not meaningfully grapple with the evidence.”
Mother urges the family court instead “converted historical concerns into a
present barrier to equal parenting time.” Mother asserts that because the
present-tense finding was “unsupported by the current record, the denial
of equal parenting time cannot stand.”
¶14 Absent evidence to the contrary, “substantial, frequent,
meaningful and continuing parenting time with both parents” is in a child’s
best interest. A.R.S. § 25-103(B)(1). That directive does not require
equal parenting time or remove the requirement that the family court adopt
a parenting plan consistent with a child’s best interests. See A.R.S.
§ 25-403(A) (factors the court should consider in determining if
parenting time is in the best interests of a child); see also A.R.S.
§ 25-403.02(B) (court shall adopt a parenting plan consistent with the child’s
best interests).
¶15 The family court found that equal parenting time was not in
the children’s best interests because “Mother still experiences suicidal
ideation and will not agree to keep Father informed of their attendance at
therapy” and “Mother does not always put the children’s best interests
before Mother’s conflict with Father.” Although Mother argues the record
does not support this finding, Mother testified to experiencing “passive
suicidal ideation” and believing that “because I co-parent with [Father], the
only way I will have peace is if one of us dies.” To be sure, Mother also
testified that Mother’s mental health was “stable,” but the family court is in
the best position to determine witness credibility and resolve conflicting
evidence. Vincent v. Nelson, 238 Ariz. 150, 155 ¶ 18 (App. 2015). The record
is not “devoid of competent evidence” supporting the family court’s
decision, Engstrom, 243 Ariz. at 471 ¶ 4, and we defer to the court’s findings
related to the conflicting evidence and credibility of Mother’s testimony,
Vincent, 238 Ariz. at 155 ¶ 18.
¶16 Mother also argues that the court erred by treating Mother’s
refusal “to accept Father’s proposed future monitoring condition as a
reason to deny equal parenting time.” Father proposed a week on/week off
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ATCHISON v. ATCHISON
Decision of the Court
equal parenting time schedule, with the condition that Mother’s therapist
provide an annual compliance report verifying that Mother was continuing
to receive treatment. Mother rejected the proposal. Mother alleges the
family court improperly considered that rejection and that no “order
required Mother to provide Father annual therapist compliance
information, future treatment updates, or notice of discharge.” Although
the family court mentioned that Mother “will not agree to keep Father
informed of their attendance at therapy,” it also relied on other evidence
including that “Mother still experiences suicidal ideation” and “does not
always put the children’s best interests before Mother’s conflict with
Father.” Mother has not shown that the family court abused its discretion
in declining to award equal parenting time.
¶17 Next, Mother alleges that, though the court found sufficient
grounds for a limited in-camera review of some of Mother’s medical
records, it improperly expanded the scope of its order to deny equal
parenting time. Mother argues that “[l]imited in camera review is one thing.
Denying equal parenting time because Mother refused future therapist
reporting to Father is something else entirely.” Mother also argues that
despite the family court stating that Mother did not disclose all mental
health records, the court “did not identify which records were missing.”
¶18 As noted above, the court listed multiple reasons for its
parenting time award and did not rely solely on Mother’s disclosure of
mental health records. Moreover, from the record, it appears Father was
asking whether Mother was in or out of treatment, not about Mother’s
detailed therapy notes. The court did not abuse its discretion.
¶19 Regarding Mother’s argument that the court did not identify
which mental health records were missing, the court did note that it did
“not believe that Mother disclosed all mental health records [it] ordered.”
But this comment was made about the award of attorney’s fees, not
parenting time. When asked about Mother’s failure to disclose any records
after January 2024, Mother responded, “there was nothing to disclose that
included self-harm, passive suicidal ideation, or anything else included in
the order.” But Mother acknowledged that “there’s no way [] to verify that.”
The court noted that Father expressed concern “because Mother did not
disclose any therapy records from 2022, and instead disclosed records from
February 2023 to January 2024.” The family court mentioned the records,
stating Mother “attended therapy once per week from November 2021 to
December 2022 and provide[d] no additional information despite” other
evidence received by the family court. The court did not err.
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ATCHISON v. ATCHISON
Decision of the Court
II. The Family Court Made Sufficient Findings Under A.R.S. § 25-403.
¶20 The parties’ original agreement was to joint legal decision
making and unequal parenting time. Neither party requested to modify
legal decision-making. Despite this, Mother alleges the family court’s
rulings “do not fit together” as it “affirmed joint legal decision-making” yet
“denied equal parenting time.”
¶21 The family court did not abuse its discretion by leaving joint
legal decision-making in place but not awarding equal parenting time. The
court’s twelve-page ruling was comprehensive and included its findings of
fact that addressed the statutory factors relevant in resolving the dispute. It
considered all the relevant factors set out under A.R.S. § 25-403(A). It then
adopted a modified parenting time schedule, with joint legal decision-
making authority, that would serve the best interests of the children.
Ultimately, despite Mother claiming otherwise, a family court can award
parents joint legal decision-making authority while denying equal
parenting time. See Gish v. Greyson, 253 Ariz. 437, 439 ¶ 2 (App. 2022)
(holding that a court may award one parent most of the parenting time and
the other parent sole legal decision-making authority if such an award is in
the child’s best interests). And neither party requested to modify legal
decision-making. The court did not abuse its discretion.
III. Attorney’s Fees and Costs.
¶22 Mother and Father both requests attorney’s fees and costs on
appeal under Arizona Rule of Civil Appellate Procedure (“Rule”) 21 and
A.R.S. § 25-324. After considering the financial positions of the parties and
the reasonableness of their positions on appeal, A.R.S. § 25-324(A), we deny
Mother’s request and grant Father’s request contingent upon his
compliance with Rule 21.
CONCLUSION
¶23 For these reasons, we affirm.
MATTHEW J. MARTIN • Clerk of the Court
FILED: JR
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