Thursday, 24 August 2017 16:51

"In What State Should I File?"

I often get questions like, “In what state should I file for custody, child support, etc.?”  Arizona has adopted the Uniform Child Custody Jurisdiction and Enforcement Act, along with most other states.  In order for Arizona to have jurisdiction over a child to establish a first custody order, Arizona must be the last state in which the child lived for six months.  For example, if a child lived in Arizona since birth until his or her ninth birthday, and then moved to California, Arizona would have jurisdiction over that child until the child had lived in California for six months, at which point California would have jurisdiction to enter a custody order for that child.  If the same child lived in California for a year and then moved back to Arizona, California would have jurisdiction over the child until the child lived in Arizona for six months, at which point jurisdiction would be in Arizona again. 
 
For children less than six months of age, jurisdiction lies in the state in which they lived from birth, until they move to another state for six months.  For example, if a child is born in Arizona, lives in Arizona for two months, and then moves to California, Arizona will have jurisdiction over that child until the child has lived in California for six months.
 
After a state’s court enters a custody order for a child, that state retains continuing, exclusive jurisdiction over that child as long as either the child or a parent still lives in that state, or that state’s court relinquishes jurisdiction because the child and a parent have moved to another state.  For example, if the parents of a child divorce in Arizona, the court in Arizona enters a custody order, the mother and the child move to California, and the father still lives in Arizona, Arizona still has exclusive, continuing jurisdiction over the child, even after the child has lived in California for over six months, unless the Arizona court relinquishes jurisdiction due to the move and other factors.  The California courts will not have jurisdiction to modify the Arizona custody order.
 
Arizona law provides exceptions to these jurisdictional rules, such as in emergency situations, but these are the general rules of child custody jurisdiction.
 
Jurisdiction for child support depends on other factors.  In order for a court to order a person to do something, such as pay child support, the court must have jurisdiction over that person, regardless of whether it has jurisdiction over the child.  Therefore, if a parent wants the court to order the other parent to pay child support, the court must have jurisdiction.  This usually means that the parent seeking child support must file in the state in which the other parent lives.  However, there are limited exceptions, mainly if the other parent enters the state and gets served, the state in which that parent received service will have jurisdiction, even though that parent lives in another state.  For example, if a parent who lives in California travels to Arizona and receives a summons and petition from a process server for a child support action in Arizona, the Arizona court has jurisdiction over that parent and can order that parent to pay child support.
 
If you have questions about child custody, legal decision making, parenting time, and child support jurisdiction, please contact Thomas A. Morton, PLLC for a consultation.
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A recent Arizona Court of Appeals decision addressed attributing overtime income and use of a medical insurance cost incurred for multiple people in calculating child support.  The court ruled that under the Arizona Child Support Guidelines, the family court may not attribute income over a normal full-time work schedule without a showing that the parent historically earned overtime income and anticipates earning the overtime income in the future. 
 
Also, the court must prorate the amount a parent spends on medical insurance when the amount is for the children in the child support calculation and others.  For example, a father pays for medical insurance through his employer for himself, Child A, and Child B.  Child A and Child B have different mothers.  In calculating child support for Child A, the court would use one-half of the difference between the employee cost and the employee plus family cost of medical insurance.
 
I often have child support cases in which one parent works part time at a second job or earns some overtime.  The question is always what amount of income will the court use for child support purposes.  The answer is that the court will usually use only the regular earnings from the main, full-time job.  Also, the scenario where the parent who provides insurance for individuals including the children in the child support calculation as well as others, such as other children.  The Court of Appeals has now resolved the question of whether we use the entire cost of insurance or we prorate it.
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Thursday, 13 April 2017 12:23

How Arizona Courts Calculate Child Support

Arizona courts calculate child support pursuant to the Arizona Child Support Guidelines.  The Arizona Supreme Court posted the Guidelines on its website here: https://www.superiorcourt.maricopa.gov/sscDocs/pdf/drs10hz.pdf
 
The Arizona Supreme Court also published an Arizona child support calculator here: http://www.azcourts.gov/familylaw/2015-Child-Support-Calculator
 
Parents can calculate child support using the online calculator.
 
The Arizona Child Support calculator uses a formula which calculates the basic child support amount based on the combined gross monthly income of the parents.  If a parent is purposely unemployed or underemployed, the court can attribute an income that the court believes that parent can earn.  The court will generally not include overtime or income from a second job when that parent already has a full-time job.  The gross monthly income may change due to support a parent provides for children that are not common to the parties.
 
After determining the basic child support amount from the combined gross monthly income of the parents, the calculator divides that amount proportionately to each parent’s income to determine the child support amount.  Then, the calculator makes adjustments based the cost of medical/dental/vision insurance, day care costs, the number of parenting time days, and, in some cases, extraordinary child costs.  Extraordinary child costs are costs associated with a gifted or disabled child.  After making these adjustments, we have the guideline child support amount.
 
After determining the guideline child support amount, the court may, on rare occasions, deviate from the guideline amount if the court finds that doing so is in the best interests of the child.
 
If you have questions about child support in Arizona, please give me a call.
Published in Blog
Thursday, 09 February 2017 10:10

Arizona Child Support Modification

What changes in circumstances affect the child support calculation in Arizona?  In Arizona, the family court can modify child support orders when a party shows a substantial and continuing change in circumstances.  The changes that may affect the child support calculation include an increase or involuntary decrease in income, a change in parenting time, a child’s emancipation, the birth of more children, and changes in the cost of medical or dental or vision insurance and day care.
 
When one or more of these factors significantly changes the child support calculation, it may be time to file a petition to modify child support.  Parents should not procrastinate if they decide to modify child support because the court will not modify the amount back to the date the change occurred.  The court can only modify the amount back to the date of service upon the other party.
 
You may use the simplified process when your petition shows a change in child support of at least 15%.  To file for a simplified modification of child support, you file a petition, child support worksheet, and a proposed order for the court to sign.  You also pay a fee to the court.  After you file, you serve your petition, child support worksheet, and proposed order on the other parent.  The other parent must then request a hearing or the court will enter your order.
 
To file a regular modification of child support, you file your petition, child support worksheet, and affidavit of financial information, along with a blank order to appear.  You also pay the court’s fee.  Once the court issues its order to appear, you serve the petition, child support worksheet, affidavit of financial information, order to appear, and a blank affidavit of financial information on the other parent.
 
At the hearing, you should have all of your documents in order and have copies to submit into evidence.  The key to child support modification is to not delay filing and to have evidence to prove everything you tell the court.
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Wednesday, 25 January 2017 14:42

When You Can Change Your Judge in Family Court

In Arizona family courts, every party gets one “free” change of judge and one “free” change of commissioner as matter of right.  This means that you can change your judge (or commissioner) once and not have to give a reason.  An experienced family law attorney may be able to tell whether you should strike a particular judge or commissioner.
 
The time limit to change the judge varies, depending on circumstances, but parties must in general file their notice of change of judge within 90 days of joining the suit, 10 days after assignment of a new judge, and more than three business before a hearing.  The rules of procedure contain several exceptions.
 
Also, a party wishing to change a judge must do so before the judge rules on any contested issue, and before a conference, hearing, or trial begins.  A party may not strike a judge if that party has previously agreed to that judge’s assignment.
 
If a party cannot change the judge as a matter of right, the party can only remove the judge for cause.  The only grounds to remove a judge for cause are if the judge was an attorney in the case prior to becoming a judge; the judge is otherwise interested in the action; the judge is kin or otherwise related to a party; the judge is a material witness; or on account of the judge’s bias, interest, or prejudice the party cannot get a fair and impartial trial.  These grounds are very rare and courts very seldom remove a judge from a case for cause.
 
If you need advice regarding removing a judge from your case, contact my office to set up a consultation.
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Many people seek answers to their family law questions on the internet.  My website has a lot of information and answers to peoples' questions.  I have also answered a lot of actual questions from people on Avvo.com.  A good example of this family law Q & A is my last answer:

 

I have had my son since he was three weeks old, and now that he is 1 year and 8 months his mother wants to share custody.

What can I do? She works 10 hour days and leaves him with whoever will watch him.

Thomas’s Answer

If there is no order and you were never married to the mother, she has the right to take your son at any time because children born out of wedlock in Arizona are in the sole care and custody of the mother until a court makes an order to the contrary. Therefore, if this is the case you should probably act quickly and file to establish paternity, legal decision making and parenting time.

If there is a court, order, you have to abide by the court order. Either one of you can file to modify the court order, assuming that it has been long enough since the court entered the order.

If you are married and there is not court order, then neither one of you has a superior right to the other.

 

To see all of my answers on Avvo.com, go here: https://www.avvo.com/attorneys/85013-az-thomas-morton-419854/answers.html

You can also browse answers from many other attorneys.

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 When does child support end in Arizona?  Child support in Arizona does not always end at the same time.  It depends on the particular facts of each case.  Generally, child support ends when a child is over the age of 18 years and has graduated from high school.
 
 Child support in Arizona generally ends when a child reaches 18 years of age.  If the child has not graduated from high school, child support will continue until the child graduates from high school, but only until the child reaches the age of 19 years as long as the child remains in high school.  In rare circumstances, the family court may order that child support continue past the age of majority, if the child has a severe mental or physical disability that renders the child unable to live independently and be self-supporting and the disability arose prior to the child reaching the age of majority.
 
 Example 1.  The child graduates from high school on May 31, 2016 and turns 18 on July 31, 2016.  Child support ends on July 31, 2016.
 
 Example 2.  The child turns 18 on December 31, 2015 and graduates from high school on May 31, 2016.  Child support ends on May 31, 2016.
 
 Example 3.  The child turns 18 on December 31, 2015 and never graduates from high school, but attends high school until after he turns 19.  Child support ends on December 31, 2016 (the child’s 19th birthday).
 
 Example 4.  The child turns 18 on December 31, 2015, has not graduated from high school and does not attend high school.  Child support ends on December 31, 2016.
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Arizona has no statute of limitation on collection of child support arrears, but it does have a statute of limitation on collecting spousal maintenance ("alimony") arrears.  The statute of limitation is three years past the termination date for the spousal maintenance obligation.

For example, if the court ordered Husband to pay Wife spousal maintenance through June, 2015, the deadline to file any petition to collect any arrears would be June 30, 2018.  This does not mean that the statute of limitation will bar collection of payments that are more than three years overdue.  For example, if the court ordered Husband to pay spousal maintenance through June, 2012, and Husband missed a payment in June, 2005, and Wife filed her petition to enforce spousal maintenance on June 1, 2013, then Wife’s petition is timely.

This means that people can wait to enforce spousal maintenance, but they cannot wait forever, like they can with child support.  However, as a practical matter, it does not make sense to wait to enforce either spousal maintenance or child support until the other party owes tens of thousands of dollars.  The larger the amount of arrears, the more difficult collecting the entire amount becomes.  A better course of action is to petition the court to enforce support orders before the amount of arrears grows too much, so that the other party begins to make regular, consistent payments.

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The Arizona Court of Appeals has recently issued some decisions regarding a few miscellaneous child support issues.  These cases include a parent attempting to recover an overpayment of child support, a court that modified child support after it modified parenting time even though neither party asked the court to modify child support, and a parent who worked part time at an hourly rate who had full-time income attributed to her at the same hourly rate as her part-time income.

In the first case, the children’s father overpaid child support because the mother started receiving SSI on behalf of one child.  Meanwhile, the oldest child emancipated.  The father waited one year to terminate child support.  The father argued that his child support obligation should end because one child had emancipated and the other child received SSI.  He also argued that the mother should pay back the overpayment caused by her receipt of SSI.  The court denied the request for reimbursement because the father had waited so long to terminate child support, it was within the court’s discretion to not order reimbursement, and Arizona law precludes a retroactive reimbursement (meaning that an order for reimbursement under these circumstances would amount to a retroactive child support modification, which Arizona law does not allow).

In the second case, the mother asked the court to modify joint legal decision making regarding school choice.  The father filed a counter-petition seeking equal parenting time.  Neither parent asked the court to modify child support.  The trial court granted the father’s request for equal parenting time and modified child support accordingly.  The mother appealed.  The Court of Appeals ruled that Arizona law requires the Family Court to enter a child support order pursuant to the Arizona Child Support Guidelines every time it enters a parenting time order.  Therefore, every time a court modifies parenting time, the court must also address child support, even when neither party has asked the court to do so.  This reminds me of a case I handled several years ago.  In that case, the opposing party had asked to modify parenting time to decrease my client’s time with the child.  Her petition backfired because the court ended up increasing my client’s parenting time.  The judge then proceeded to modify child support.  When the opposing party objected that she had not asked for a child support modification, the judge said that modification of parenting time and modification of child support go together, like peanut butter and jelly, ham and cheese, and chips and dip.

In the third case, the mother, whom the court had ordered to pay child support, lost her job due to "performance issues" in 2007 and remained unemployed until 2013.  In 2013, she began to work part-time for $11.60 per hour.  In calculating child support, the trial court used $11.60 per hour and 40 hours per week for the mother’s income.  The Court of Appeals ruled that the trial court had implicitly found that the mother had not provided any reasonable basis for not having full-time employment.  The only evidence that she had offered was her statements, which the trial court could accept or reject.

As you can see, not every issue in a child support matter is so easy to resolve.

Published in Blog
Thursday, 06 August 2015 16:57

How to Recover Uninsured Medical Expenses

One issue with which parents often struggle is how to give notice to the other parent of unreimbursed medical expenses for the parties’ children.  The Arizona Court of Appeals recently addressed this issue in an unpublished decision.

The Arizona Child Support Guidelines require the parent seeking reimbursement from the other parent to give notice to the other parent within 180 days of incurring the expense.  The notice need not be in writing and need not include a receipt, unless the other parent asks for it.

The parties in the appellate case operated under these rules until the court entered a modification order requiring the parent seeking reimbursement from the other parent to give notice in writing within 30 days of treatment and to provide a receipt or invoice.

The appellate court applied the standard in the guidelines to the medical claims that the mother incurred prior to the modification order and applied the modified standard to all claims incurred after the modification order.  Also, the court allowed most of the mother’s claims, even the claims for which she could supply no written demand and for which the father claimed that the mother had made no verbal demand, because the court found the mother to be more credible.

The bottom line is that the Guidelines enact one standard for demanding reimbursement for out-of-pocket medical costs, but the court may make its own procedure in any given case.  Therefore, parents should read their court orders and make their demands accordingly.  Furthermore, demands should always be in writing and include a receipt, even if the court’s order does not require it.  As I often tell my clients, the other party can lie about what you said or did not say, but they cannot lie about what you wrote.  Parents should also include the receipt in order to take away from the other parent the argument that the demand did not include a receipt. 

The court also made a few other holdings important for parents regarding uninsured medical expenses.   First, the court ruled that the mother’s inability to pay a medical bill did not change the father’s obligation to pay his portion.  The court ordered the father to pay his portion of the expense directly to the health care provider.  Also, the father’s attendance at some of his children’s doctor’s appointments was not sufficient notice of the medical expense.  The mother still had to give notice of her costs to the father.

Parents often give defective notice or present insufficient evidence to the court.  An experienced family law attorney’s advice and/or help will often make the difference between failure to recover unreimbursed medical expenses and success.  If you have to recover expenses from the other parent, Thomas A. Morton can help you.

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