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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For many years, fathers in Arizona have not been treated fairly when their children were born out of wedlock.  Recently, the Arizona Court of Appeals changed that.  Children born out of wedlock in Arizona are in the sole care and custody of the mother until a court orders otherwise.  This makes sense because the maternity of a child is beyond question, while that is not the case with paternity.
 
However, Arizona has long had statutes that say that when a father has established paternity, he has a right to access to his child and that one parent may not deny access to the child to the other parent.  For years, however, courts have not held that these statutes mean that a mother of a child born out of wedlock for whom there is no custody order may not move a child out of state without a court order or the father’s consent.  Courts have allowed it because children born out of wedlock are in the sole custody, care, and control of the mother.
 
In April, 2017, the Arizona Court of Appeals changed that.  A father of a child born out of wedlock had established paternity by signing an acknowledgment of paternity with the mother and filing it with the Department of Economic Services.  He and the mother did not previously seek a court order regarding the child.  The mother then moved with the baby to Wisconsin without seeking a court order and without the father’s consent. 
 
The trial court ruled, and the Court of Appeals affirmed, that the father had established his paternity by signing and filing the acknowledgment of paternity with the mother.  Although the child was in the sole care and custody of the mother, the mother did not have the right to deny access to the child to the father because he had established paternity.  Here is the part that changes the way Arizona courts approach this issue: the court ruled that the mother wrongfully denied access to the child by moving the child out of state without first seeking a court order and without the father’s consent.  Therefore, the mother had to bring the child back to Arizona or face legal consequences.
 
For years, many fathers faced this situation having thought that the mother of their child could not just move their children to another state.  By the time they found out the truth, it was often too late.  Now, the Court of Appeals has taken the step of correctly holding that the mother of a child born out of wedlock whose paternity has been legally established cannot legally move the child to another state just because she is the mother.
 
The important distinction is that the parents of the child in this case had legally established paternity of the child.  Had the parents not established the father’s paternity of the child, the mother could have legally moved the child out of Arizona without a court order or the father’s consent.  In that case it would have been possible for the judge to order the mother to return the child to Arizona if the judge found that a return to Arizona was in the child’s best interests because Arizona courts would still have jurisdiction over the child.  However, it would not have been strictly required to order the mother to return the child to Arizona and the mother would not have been breaking the law.
 
The lesson from this case is that father must establish paternity without delay.  The child in this case was only two months old.  Had the father not established his paternity of the child, this case may have gone a very different way.  Besides establishing paternity (which parties can only do with a court order or by signing and filing an acknowledgment of paternity), the parents should seek an order for legal decision making, parenting time, and child support, rather than having the constant conflict that not having an order causes.  There are plenty of other reasons to seek orders, but they are a subject for another blog post.  If mothers and fathers need help with these issues, my firm offers a consultation at a discounted rate.  Thanks for reading!
 
You can read the entire Court of Appeals decision here:http://www.leagle.com/decision/In%20AZCO%2020170413015/GUTIERREZ%20v.%20FOX
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You should hire an attorney to represent you in your divorce for several reasons.  The first and most important reason is that the attorney is not as emotionally invested in your case as you.  You are very emotional about your divorce and emotional people often make bad decisions, including decisions that cost them dearly in terms of money, family, and aggravation.  An attorney can give you good advice not clouded with anger or other emotions that hinder good judgment.
 
Another reason to hire an attorney is that the attorney knows the law and rules of procedure.  Many people think that they know the law, but they often do not know the law nearly as well as they think.  An attorney can give you advice based on working in this area of law every day.  An attorney knows the procedures, deadlines, and how to meet the deadlines.  This means that an attorney knows how to get the things done that you need to get done.
 
An experienced attorney knows the judges and how they tend to rule and think.  He knows what arguments to make to particular judges.  He knows how the judges tend to rule on what issues and what evidence.  For example, you may want to move your child to another state, and if you happen to have a judge that almost never allows such moves, an experienced attorney will know to use your one “free” change of judge.  An experienced lawyer will know what arguments your particular judge tends to find persuasive.
 
Another reason to hire an attorney is that, unfortunately, some judges tend to give attorneys a lot of credibility and listen to them, but they do not appear to do the same with unrepresented parties.  How many times have you heard someone say that the judge went along with everything that the opposing party’s attorney said, but disregarded everything the unrepresented party said?  A lot of this has to do with the attorney knowing what evidence to present and what arguments to make.  Some of it has to do with the attorney appearing regularly before the judge.  But some of it may be that some judges are more likely to place more weight with the attorney.
 
A good example is a divorce case that I recently completed.  The unrepresented opposing party missed deadlines, failed to submit evidence, made arguments that are contrary to law, seemed to have no idea how unreasonable the party was being, was extremely obnoxious in court, and seemed to make every decision based on anger and contempt toward my client..  A good attorney could have explained the law to this party, presented evidence, pushed the party towards more reasonable positions, met every deadline, and kept this party from engaging in obnoxious courtroom antics.  A good attorney could have settled the case without going to trial.  Instead, we went to trial and the trial was a disaster for this party.
 
I realize that it sounds self-serving for a divorce lawyer to say that everyone in a divorce needs a lawyer, but it is a fact.  I am a divorce lawyer and I would not go through a divorce without a lawyer.  Even if you don’t come to me for help with your divorce, you should go to another lawyer.  Good luck!
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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.
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The United States Supreme Court will hear oral argument next month on an Arizona case regarding a retired service member’s retired pay and disability pay.  The couple’s divorce decree ordered them to evenly divide the service member spouse’s military retired pay.  A few years later, he decided to accept disability pay in lieu of part of his retired pay.  This is a common decision because the government taxes military retired pay but not disability pay.  However, this decision reduced his military retired pay and therefore reduced his former spouse’s half of his military retired pay.  The Arizona Supreme Court ruled that the service member spouse’s acceptance of disability pay could not reduce the dollar amount that his former spouse received.  The United States Supreme Court accepted this case for review last month.
 
The Uniformed Services Former Spouses Protection Act is a federal law that allows state courts to divide a spouse’s military retired pay upon divorce.  There is no federal law authorizing state courts to divide disability pay.  Arizona courts have found that the service member spouse cannot use the disability pay option to reduce the dollar amount that his or her former spouse receives.  Now the United States Supreme Court will decide whether this is correct.
 
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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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Thursday, 17 November 2016 10:44

Court Appointed Advisor in Arizona Family Court

I recently finished the report to the court on my most recent court appointed advisor assignment.  A court appointed advisor is someone whom the family court appoints to investigate the facts in a custody/legal decision making/parenting time dispute.  It usually involves allegations of abuse, neglect, drug use, domestic violence, or some combination of these factors.  The court appointed advisor is the court’s eyes and ears, who investigates the case, reports to the court, and makes a recommendation.  The court ultimately makes the decision.
 
The advisor has the authority to retrieve medical, school, criminal, department of child safety, or any other records. He or she interviews the parents and any other people whom the advisor deems appropriate to interview.  The advisor inspects the parents’ homes and may interview or observe the children.
 
The instructors in my training said that both parents will act like they love me at first, but will both be angry with me if I do a good job.  This latest case was no exception.  One parent agreed with my recommendations, although my recommendations were not one-sided, but appeared to be angry with me and would not even look at me.  The other parent, however, denounced me to the court, claimed that I had not done my job, claimed that I am biased, and sat in court glaring at me.
 
This was still a rewarding experience because, unlike other pro bono cases, I am not an advocate for one of the adults.  My only concern is to gather and give information to the judge and I can truly focus on the best interests of the child.
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A mother in Minnesota who defied family court orders and hid her children from their father for two years has not only lost custody of her children to their father, but she has been convicted on criminal charges for doing so and will go to prison for eight months.
 
I have dealt with these extreme cases in Arizona.  Sometimes, the other parent even goes so far as to move the children to another state in an attempt to hide them and destroy their relationship with the other parent.  If this happens to you, don’t give up.  Immediate and aggressive action in Family Court will often ultimately result in you getting your children back.  Judges don’t like this sort of game.
 
Here is the article about the mother in Minnesota who hid her children from their father for two years:
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