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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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: 

CHARLES JACOB HEUCHAN, Petitioner/Appellee,

v.

ASHLEY N. LIPKO, Respondent/Appellant.

No. 1 CA-CV 17-0046 FC

Appeal from the Superior Court in Yuma County

No. S1400DO201400270

The Honorable John P. Plante, Judge

VACATED AND REMANDED

COUNSEL

Mary Katherine Boyte PC, Yuma

By Mary K. Boyte Henderson

Counsel for Respondent/Appellant

MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in 

which Judge Jennifer B. Campbell and Judge Jennifer M. Perkins joined.

FILED 1-30-2018
HEUCHAN v. LIPKO

Decision of the Court

2

B R O W N, Judge:

¶1 Ashley Lipko (“Mother”) appeals the superior court’s orders

modifying parenting time and denying her motion for new trial. For the 

following reasons, we vacate the court’s May 2016 parenting time order and 

remand for proceedings consistent with this decision.

FACTS AND PROCEDURAL BACKGROUND

¶2 Mother and Charles Jacob Heuchan (“Father”) are the parents

of one child, born in 2012. In March 2014, Father filed a petition to establish, 

as relevant here, legal decision-making and parenting time. At an 

evidentiary hearing in August 2015, the parties agreed that Mother would 

have sole legal decision-making authority. As to parenting time, the 

superior found that (1) “the domestic violence and abuse of Ms. Lipko [is] 

significant in calculating risk to the child,” (2) “Ms. Lipko left the home due 

to domestic violence,” and (3) “Father was brutal to her and to the dog.” 

Notwithstanding the domestic violence, the court determined “a few 

hours” of supervised parenting time on alternating Saturdays would not 

endanger the child. 

¶3 In March 2016, Mother filed a notice of intent to relocate with 

the child to Colorado. Father filed a petition to prevent relocation, 

contending it would not allow a realistic opportunity for parenting time. 

Father requested that the superior court prohibit relocation and affirm the 

November 2015 parenting time order.

¶4 In May 2016, after a 30-minute hearing, the superior court 

allowed relocation of the child, and over Mother’s objection, ordered that 

Father have two (non-consecutive) weeks per year of unsupervised 

parenting time in Arizona. The court warned Father, “if there’s any bad 

behavior on your part, [the twice-a-year visits] probably aren’t going to 

happen the following year.” Father indicated he understood and stated, 

“I’m just – I - I mean . . . coming from the supervised visits every other week 

is - and then going to that is - it’s great. It’s amazing.” Mother implored that

parenting time be supervised “for [the child’s] safety,” which was followed 

by the following exchange:

THE COURT: Well, I think [the child’s] old enough 

now that you don’t need supervision. He can call you at any 

point in time. You can call him. You can check on him. He can 

talk. He'll be able to tell you if there's a problem, and there 

won't be any further --
HEUCHAN v. LIPKO

Decision of the Court

3

MS. LIPKO: He is four, and he’s not going to 

understand what it means if [Father’s] knocking his girlfriend 

around. He shouldn’t have to see that or even be put in a 

situation to where he can see that.

THE COURT: Well, you better not be seeing it with ---

while the child’s there.

The court denied Mother’s motion for a new trial, and her timely appeal

followed.

DISCUSSION

¶5 Mother argues the superior court erred by modifying 

parenting time because Father did not request modification. When a court 

order establishes joint legal decision-making authority or parenting time for 

two Arizona parents, and one of the parents seeks to relocate the child

outside of the state, the relocation is governed by Arizona Revised Statutes 

(“A.R.S.”) section 25-408(A). See Vincent v. Nelson, 238 Ariz. 150, 153, 

¶¶ 9-10 (App. 2015). In assessing a relocation request, the superior court 

must, to the extent practicable, “make appropriate arrangements to ensure 

the continuation of a meaningful relationship between the child and both 

parents.” A.R.S. § 25-408(G). Mother concedes the issue of relocation may 

require modification of parenting time. See Owen v. Blackhawk, 206 Ariz. 

418, 420–21, ¶¶ 8–12 (App. 2003). Although Mother suggests that her

relocation “did not absolutely require a modification of parenting time,” 

she should have been “prepared for the possibility” the court would not 

agree with her. Cf. Sundstrom v. Flatt, 776 Ariz. Adv. Rep. 23, ¶ 7 (App. Oct. 

17, 2017) (rejecting mother’s argument that the superior court erred by 

awarding husband legal decision-making when he had not filed his own 

petition to modify legal decision-making).

¶6 That said, we agree with Mother that the superior court erred 

by modifying the parenting time order without making specific findings 

regarding the child’s best interests. Because this case involved a contested 

issue of parenting time, the court was required to consider best interests 

factors and “make specific findings on the record about all relevant factors 

and the reasons for which the decision is in the best interests of the child.”

A.R.S. § 25-403(A), (B); see Hurd v. Hurd, 223 Ariz. 48, 51, ¶ 11 (App. 2009).

Although we review a parenting time order for an abuse of discretion, Nold 

v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013), a parenting time order without

the required best interests findings is deficient as a matter of law, Reid v. 

Reid, 222 Ariz. 204, 210, ¶ 20 (App. 2009). We therefore vacate the court’s 
HEUCHAN v. LIPKO

Decision of the Court

4

order and remand for further proceedings. Because a decision concerning 

parenting time rests on the child’s best interests, on remand the parties must 

be allowed sufficient time to prepare and present all relevant evidence to 

the court. See Cruz v. Garcia, 240 Ariz. 233, 236, ¶ 11 (App. 2016). 

¶7 The superior court also erred in failing to account for 

Father’s domestic violence (past and present) in determining a new 

parenting time arrangement. See A.R.S. § 25-403.03(F) (“If the court finds 

that a parent has committed an act of domestic violence, that parent has the 

burden of proving to the court’s satisfaction that parenting time will not 

endanger the child or significantly impair the child’s emotional 

development.”). Given the superior court’s 2015 findings relating to 

Father’s domestic violence, together with the allegations Mother briefly 

raised at the May 2016 relocation hearing, the record does not reflect that 

the court held Father to his burden. Father offered no evidence to prove 

the child would no longer be endangered or his emotional development 

impaired by unsupervised parenting time. See A.R.S. § 25–403.03(F). 

Instead, the court found credible Mother’s testimony that Father “yell[s] 

and yell[s] obscenities to me and my husband” over the telephone. The 

court explained to Father: “You have a history, at least. That’s the history. 

You know, when you have a history, sometimes you get wrongly accused. 

. . . That’s kind of the way it works, but she has no reason to lie about this, 

that you’re not pleasant on the phone.” And to the extent the court 

concluded that Father carried his burden under § 25-403.03(F) because the 

child was four years old and could “tell you if there’s a problem,” the court 

erred. 

¶8 Finally, in determining whether to allow a contested 

relocation, the superior court must consider the child’s best interests by 

reference to the relevant factors listed in A.R.S. §§ 25–408(I) and–403. See 

A.R.S. § 25–408(G), (I); see also Owen, 206 Ariz. at 420–21, ¶¶ 8–12. It was 

Mother’s burden to prove that moving to Colorado was in the child’s best 

interests. See A.R.S. § 25–408(G); Pollock v. Pollock, 181 Ariz. 275, 277 (App. 

1995). The record does not reflect the superior court evaluated the child’s 

best interests in allowing Mother to relocate to Colorado, but Father did not 

appeal or otherwise challenge the relocation order. Accordingly, we 

consider the issue waived. See State v. Carver, 160 Ariz. 167, 175 (1989)

(“Failure to argue a claim usually constitutes abandonment and waiver of 

that claim.”)
HEUCHAN v. LIPKO

Decision of the Court

5

CONCLUSION

¶9 For the foregoing reasons, we vacate the May 2016 parenting 

time order and remand so the superior court can “perform the necessary 

statutory analysis.” See Nold, 232 Ariz. at 274, ¶ 15.