Background
Gregory Winters and Macie Perez are divorcing and dispute legal decision-making, parenting time, child support, property division, debt allocation, and attorney fees. Perez alleged that Winters had committed significant domestic violence, including an incident in which he allegedly displayed and cocked a gun in front of her and her friends.
Winters planned to invoke his Fifth Amendment privilege against self-incrimination if questioned about the December 2023 incident. He accepted that doing so would prevent him from testifying about custody-related issues and permit a negative inference on those issues, but sought to testify about the unrelated division of marital assets and debts. The superior court ruled that his invocation barred all of his testimony, prompting special-action review.
The Court’s Holding
The Arizona Court of Appeals accepted jurisdiction, granted relief, and vacated the order precluding Winters from testifying about financial matters. A party who invokes the Fifth Amendment in a dissolution case may be barred from offering personal testimony on the issue to which the privilege applies, and the family court may draw a negative inference from that silence.
But that rule did not justify a blanket bar here. The domestic-violence allegations bore on legal decision-making and parenting time, while property division generally turns on acquisition of property and must proceed without regard to marital misconduct. Because Winters sought to testify only on discrete financial issues, barring that testimony made his assertion of the privilege unconstitutionally costly.
Key Takeaways
- A parent invoking the Fifth Amendment on domestic-violence questions cannot testify about legal decision-making or parenting time and may face a negative inference on those issues.
- The privilege does not categorically bar testimony on separate, unrelated issues such as marital asset and debt division.
- Potential overlap between financial claims and allegedly criminal conduct calls for case-specific judicial management, not automatic total preclusion.
Why It Matters
The decision limits the reach of the all-or-nothing approach applied in single-issue custody disputes. In multi-issue dissolution cases, family courts must distinguish between testimony tied to the privileged subject and testimony on genuinely separate issues.
The court left open whether a parent who invokes the privilege on one parental-fitness issue may nevertheless offer other testimony bearing on a child’s best interests.