McCallum v. Costello

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MICHAEL MCCALLUM, Petitioner/Appellee,

v.

ERIN COSTELLO, Respondent/Appellant.

No. 1 CA-CV 25-0710 FC
FILED 06-22-2026

Appeal from the Superior Court in Maricopa County
No. FC2016-070790
The Honorable J. Justin McGuire, Judge Pro Tempore

AFFIRMED

COUNSEL

Lazenby Law Firm, PLLC, Glendale
By Christopher R. Lazenby
Counsel for Petitioner/Appellee

Erin Costello, Glendale
Respondent/Appellant
MCCALLUM v. COSTELLO
Decision of the Court

MEMORANDUM DECISION

Chief Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Veronika Fabian joined.

H O W E, Judge:

¶1 Erin Costello (“Mother”) appeals the superior court’s order
addressing legal decision-making, parenting time, and child support. For
the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Mother and Michael McCallum (“Father”) share one minor
child, Caleb (a pseudonym), born in 2012. Although Father acknowledged
paternity and remained in a relationship with Mother until 2015, they never
married. In 2016, after ending their relationship, the parties agreed to joint
legal decision-making and parenting time. The agreement also prohibited
either parent from using marijuana or alcohol “eight hours prior to or
during the time” they cared for Caleb. The court adopted their agreement
and ordered Father to pay child support.

¶3 In 2024, Mother petitioned for sole legal decision-making, to
be allowed “to relocate with the child to California” where Caleb would
“primarily reside” with her, and for Father to “exercise supervised
parenting time” and “undergo anger management classes and a batterers
intervention program.”

¶4 Before the trial on Mother’s petition, the court addressed two
motions for temporary orders. In response to the first motion, the court
found that “Father has committed an act of domestic violence,” awarded
Mother sole legal decision-making, and restricted Father’s parenting time
to supervised time only. It also appointed an advisor to create a report and
make recommendations regarding the best interests of the child.

¶5 Following Father’s subsequent motion and submission of
additional evidence, including the advisor’s report, the court held a hearing
and found that Father had “submitted uncontroverted evidence that he has
not been charged with any crime arising out of the” alleged domestic
violence incident. The court also noted that Caleb, now twelve, told the
court appointed advisor that “he has never witnessed any physical violence

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between Father and [the] alleged victim” and “that he wanted to spend
more time with Father and did not think that supervision of their time
together was necessary.” The court thus found a substantial change in
circumstances since the entry of the temporary orders and ordered the
parties return to joint legal decision-making and unsupervised equal
parenting time. Mother moved for the court to conduct an in camera
interview with Caleb before the trial, arguing he was “of sufficient age (12
years old) and maturity to be interviewed.” The court denied her motion.

¶6 At the trial on Mother’s petition, the court heard testimony
from the appointed advisor, Mother, and Father. The advisor’s report was
admitted into evidence. The report revealed that Caleb “was adamant that
he wants to resume the equal parenting schedule” and “does not like that
he does not get to spend more time with Father.” The advisor testified that
Caleb “had positive things to say about both parents” and “there was
insufficient information that Father ha[d] abused or neglected [Caleb].”

¶7 In her testimony, Mother agreed that Caleb “has a good
relationship with both [her]self and with Father,” “that he loves” both
parents, and that “he enjoys spending time with” both parents. She also
testified that Caleb had friends in his current school, was an honor student
doing “very well” in school, and was involved with cross-country and
violin.

¶8 Mother further testified that she and her fiancé both worked
for her fiancé’s mother’s company and that “[t]he whole company . . . has
moved” to California, including all employees. She then explained that
even if the court denied her request to relocate Caleb, she would still move
to California for her work. Mother testified that Caleb told her “he has been
with his father when his father has been drinking.” She also admitted a
photo of Father drinking from a bottle while with Caleb and testified that
Father had a previous for conviction for driving under the influence
(“DUI”).

¶9 Father testified that, if Mother moved to California, he would
care for Caleb most of the year and “absolutely” support Caleb’s visiting
her during school breaks. He testified that Caleb was close with Father’s
family who live nearby, that he enjoyed his current school, teacher, and
friends, and that he had never expressed a desire to attend a different
school. Father also testified that, although not required by the court, he
tested his blood alcohol levels for three straight months. The testing results
were admitted and revealed that, in three months of daily tests (sometimes

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multiple times a day) Father only twice had a blood alcohol level above 0,
once showing a 0.034 and once a 0.014.

¶10 Regarding domestic violence, Father testified to one incident
where his ex-girlfriend hit him repeatedly before he defended himself and
explained that no criminal charges were pressed against him. He admitted
the police report, which included a statement from a witness who “saw the
whole thing” and told officers that Father’s ex-girlfriend was “punching
and kicking” him while he “had his arms and hands up by his head and
was tucked down.” He also admitted two documents from the court
showing that criminal charges were not filed against him for the incident or
regarding any other issues. Father also admitted evidence from four
separate programs showing he completed counseling, group classes, and
online courses all educating him on domestic violence and anger
management.

¶11 The court found that “[t]he testimony and the [advisor] report
all establish that both parents have an excellent, loving relationship with
the child” and that “[t]he child specifically told the [advisor] that he likes
spending equal time with both parents.” It weighed the factors set out
under A.R.S. §§ 25-403(A) and -408(I) and concluded that relocation to
California was not in Caleb’s best interests. The court also found “[a]fter
considering all of the evidence” that Father committed no act of domestic
violence. It found no “substantial and continuing change of circumstances
as it relates to legal decision-making and parenting time” and ordered the
parents to continue with the joint legal decision-making and parenting time
they agreed to in 2016.

¶12 The court acknowledged Mother’s testimony that she
intended to move to California regardless the court’s denial of her request
to relocate Caleb; and it set forth an alternate parenting time schedule “in
the event that [she] moves her residence to California.” Finally, the court
found that, although a change in circumstances had occurred for purposes
of child support, the change would not be continuing because Mother
testified she intended to move to California. It thus denied Mother’s request
to alter the child support amount.

¶13 The court certified its order final under Arizona Rule of
Family Law Procedure 78(c). Mother appealed and we have jurisdiction.
A.R.S. §§ 12-2101(A)(1), -120.21(A)(1).

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DISCUSSION

¶14 Mother argues that the superior court erred in (1) denying her
request for an in camera interview with Caleb, (2) “failing to apply the
domestic-violence presumption under A.R.S. § 25-403.03” in ordering joint
legal decision-making, and (3) “failing to apply A.R.S. § 25-403.04 in light
of Father’s substance-abuse history.”

I. In Camera Interview

¶15 “The court may interview [a] child in chambers to ascertain
the child’s wishes as to the child’s custodian and as to parenting time.”
A.R.S. § 25-405(A) (emphasis added); see also Ariz. R. Fam. Law P. 12(a)
(“[T]he court may conduct an in camera interview with a minor child who is
the subject of a legal decision-making or parenting time dispute to ascertain
the child’s preferences as to both.”) (emphasis added). The decision to
conduct such an interview—or not—is left to the court’s discretion. See
A.R.S. § 25-405(A); Ariz. R. Fam. Law P. 12(a); J.A.R. v. Superior Court, 179
Ariz. 267, 274 (App. 1994). The court appointed advisor interviewed Caleb
who told her that he liked spending time with both parents and wanted to
resume the equal parenting schedule. The court had sufficient evidence of
Caleb’s perspective and preferences from the court appointed advisor’s
report and did not abuse its discretion in deciding against an in camera
interview.

II. Domestic Violence

¶16 Mother claims that, because in its prior temporary order the
court found “that Father committed domestic violence, A.R.S. § 25-403.03
required the court to presume that joint legal decision-making was contrary
to the child’s best interests and to make explicit written findings under
A.R.S. § 25-403.03(E) before granting joint legal decision-making or
expanding parenting time.” We review an order for legal decision-making
or parenting time for abuse of discretion which occurs “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.” Engstrom v. McCarthy, 243 Ariz. 469, 471 ¶ 4 (App. 2018)
(cleaned up).

¶17 True, the court did at one point find that Father committed an
act of domestic violence against his ex-girlfriend. If a parent commits an act
of domestic violence against the other parent it triggers “a rebuttable

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presumption that an award of sole or joint legal decision-making to the
parent who committed the act . . . is contrary to the child’s best interests.”
A.R.S. § 25-403.03(D). The court must then make specific findings under
§ 25-403.03(E) to determine whether the party rebuts the presumption. See
DeLuna v. Petitto, 247 Ariz. 420, 424–25 ¶ 16 (App. 2019).

¶18 But here, the allegation of domestic violence, and the court’s
previous finding, concerned Father and his ex-girlfriend, not Father and
Mother. The evidence fails to establish that Father committed an act of
domestic violence against Mother. Thus, the presumption does not apply
and the court did not—as Mother argues—abuse its discretion by declining
to make “express written findings” under § 25-403.03(E).

III. Alcohol Use

¶19 Mother next argues that the court failed to properly apply
A.R.S. § 25-403.04 because “[t]he statute requires the court to presume that
legal decision-making and parenting time with a parent who abuses alcohol
is not in the child’s best interests.” We review an order affecting legal
decision-making and parenting time for abuse of discretion. Engstrom, 243
Ariz. at 471 ¶ 4. Under A.R.S. § 25-403.04(A),

[i]f the court determines that a parent has abused drugs or
alcohol or has been convicted of any drug offense under title
13, chapter 34[] or any violation of § 28-1381, 28-1382 or 28-
1383 within twelve months before the petition or the request
for legal decision-making or parenting time is filed, there is a
rebuttable presumption that sole or joint legal decision-
making by that parent is not in the child’s best interests.

¶20 Although Mother testified that Father had a DUI from 2022,
she petitioned in 2024. Thus, his DUI would fall outside the twelve-month
window set forth by the statute. A.R.S. § 25-403.04(A). And although
Mother told the court it could review an earlier filing “to see the details,”
she introduced no evidence beyond her testimony of the DUI at the hearing.
See Vincent v. Nelson, 238 Ariz. 150, 155 ¶ 18 (“[T]he family court is in the
best position to judge the credibility of witnesses.”). The superior court did
not err in not applying the presumption set forth by § 25-403.04(A).

¶21 Regarding the previous order prohibiting both parents from
drinking while caring for Caleb, Mother testified that Caleb told her that
Father drank around him and admitted a photo of Father drinking from a
bottle near Caleb. She also admitted texts from Father’s ex-girlfriend
discussing his drinking. Conversely, Father testified that he does not abuse

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alcohol and does not drink “when responsible for caring for [Caleb].” In
support, he admitted blood alcohol level tests he voluntarily took revealing
that, despite testing daily (sometimes multiple times a day), he only twice
had a blood alcohol level above 0 in a three-month period. The court
ultimately found Mother’s evidence “insufficient to establish” that Father
violated the prior order. Sufficient evidence supports the court’s finding
and we decline to reweigh the evidence on appeal. See id.; Engstrom, 243
Ariz. at 471 ¶ 4.

IV. Attorney’s Fees and Costs

¶22 Father requests his attorney’s fees and costs on appeal
pursuant to A.R.S. § 25-324 and Arizona Rule of Civil Appellate Procedure
21 and argues that Mother’s positions were unreasonable. After
consideration, we decline his request for fees. See A.R.S. § 25-324. As the
prevailing party, he is entitled to his costs upon compliance with Arizona
Rule of Civil Appellate Procedure 21.

¶23 We also note that Mother’s briefs include citations to cases
that do not support the propositions for which she cites them. Going
forward, misuse of artificial intelligence or the failure to provide accurate
legal authority may result in sanctions. See ARCAP 13(a)(7); Flynn v.
Campbell, 243 Ariz. 76, 83 ¶ 24 (2017) (we hold self-represented litigants to
the same standard as attorneys).

CONCLUSION

¶24 For the reasons stated, we affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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