I frequently see questions in online forums regarding in which country a couple must seek a divorce.  The answer is you seek a divorce in the country in which you live.  In Arizona, the only requirement to get a divorce is that you lived in Arizona for the 90 days immediately preceding the day you file your petition for dissolution of marriage.  It does not matter whether you got married in another country, like Mexico, or you got married in Arizona, or you got married in another state in the United States.  In Arizona, you can get a divorce no matter where you were married.

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Domestic violence is a factor in divorce with children and paternity cases in Arizona.  It can have a big impact on legal decision making (custody) and parenting time orders.  Significant domestic violence can be the most important factor in the Family Court’s determination.
 
If the court determines that there has been significant domestic violence between the parents or if there has been a significant history of domestic violence, it will not award joint legal decision making.  The Family Court judge must consider any domestic violence as contrary to the children’s best interest and must consider the safety and well-being of the children and victim of domestic violence of primary importance.  The court will consider a party’s history of harming or threatening to harm another person.  To determine whether a parent committed domestic violence, the court must consider all factors, including but not limited to findings from other courts, police reports, medical reports, Department of Child Safety records, domestic violence shelter records, school records, and witness testimony.
 
If the judge determines that a parent has committed an act of domestic violence against the other parent, the court must presume that joint legal decision making or sole legal decision making with the perpetrator of domestic violence is not in the children’s best interest.  The presumption does not apply if both parents committed an act of domestic violence.  A parent commits an act of domestic violence if he or she causes or attempts sexual assault or serious physical injury; causes another person to reasonably believe that serious physical injury to any person is imminent; or engages in behavior for which a court may issue a protective order for the other parent.  The court will consider the following factors to determine whether a parent rebutted the presumption against legal decision making: whether that parent demonstrated that sole or joint legal decision making in that parent or substantially equal parenting time is in the children’s best interest; whether that parent completed a batterer’s prevention program; whether that parent completed substance abuse counseling if the court determined that substance abuse counseling is appropriate; whether that parent completed a parenting class if the court determined that it is appropriate; whether a court has issued a protective order after a hearing if that parent is on probation, parole, or community supervision; and whether that parent has committed further acts of domestic violence.
 
If the court determines that a parent committed an act of domestic violence, that parent must prove that parenting time will not endanger the child or harm the child’s emotional development.  If the parent meets this burden, the court must place conditions on parenting time to protect the child and the other parent from harm.  The court may place the following conditions on parenting time: order that exchanges of the children take place in a protected place such as a police station; order that parenting time be supervised by an agency or an individual at the perpetrator’s expense; order the parent who committed domestic violence to complete an intervention program; order the parent who committed domestic violence to abstain from and not possess alcohol or drugs during and 24 hours before parenting time; prohibit overnight parenting time; require a bond from the parent who committed domestic violence for the child’s safe return; order that the address of the children and other parent be confidential; and impose any other condition that the judge deems necessary to protect the child, other parent, or any other household or family member.
 
The court may not order joint counseling between a victim and perpetrator of domestic violence and may request or order services from the Department of Child Safety.
 
Therefore, domestic violence can play a major role in a court’s determination of legal decision making and parenting time.  If you have domestic violence as an issue in your family law case, I can help you.
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Arizona Family Courts have for many years resolved conflicts between parents who cannot agree on which school their children attend or which medical treatment their children receive.  Last month, the Arizona Court of Appeals put an end to the Family Court making legal decisions on behalf of children.
 
In Nicaise v. Sundaram, the father believed that the child was developmentally delayed and sought various treatments for the child.  The father also wanted to place the child in a public school with an IEP (Individualized Education Program).  Mother disagreed, opposed any treatment, and wanted to home school the child.  The mother and father had an extremely volatile relationship and were unable to agree on any of these issues.  The Family Court in Maricopa County held a trial and ruled that the child would receive various treatments and attend a public school with an IEP in place.
 
The Arizona Court of Appeals ruled that the trial court exceeded its jurisdiction and authority by making the parents’ decisions on treatment and education for them.  The statute regarding legal decision making (custody) authorizes the court to designate the parent who can make this sort of legal decision for a child, but does not give the court the authority to actually make the legal decision for the child.  “We find no statutory grant of authority for such decisions.  If the court determines that the parents cannot agree, the court must choose which parent shall decide. But the court cannot make the decision itself.”  The appellate court went on to say that the trial court may consider each parent’s proposed decisions in making its determination of which parent shall make the decision.
 
In reaching its decision, the Court of Appeals specifically departed from its earlier decision in Jordan v. Rea to the extent that the Jordan court ruled that judges may make substantive legal decisions for parents who are unable to agree.  The Arizona Court of Appeals decided Jordan in 2009, prior to when Arizona’s statutes regarding legal decision making changed in 2013.  
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People always want to recover their attorney’s fees from the other side in a family law case.  Most judges are hesitant to make an award of attorney’s fees, but they do award fees sometimes.
 
The statute for attorney’s fees in Family Court in Arizona is A.R.S. § 25-324.  The statute provides two bases for a Family Court judge to award attorney’s fees and the judge must consider both of them.  The first basis is relative ability to pay.  If one party has a high income and a lot of assets, and the other party has a low income and few assets, then that is a basis to award attorney’s fees to the low-income party.  The other basis is if a party has been unreasonable in the positions or actions they take during the course of the proceeding.  Examples include violating court orders, taking positions contrary to law, taking positions clearly not in the children’s best interest, filing frivolous motions, and wasting the court’s time.
 
The amount of fees that the judge awards varies.  Sometimes it’s just a fraction of the fees spent and sometimes it’s all of the fees spent.  The amount awarded is in the judge’s discretion.
 
Finally, getting an award of fees is one thing, but actually collecting them is another.  The other party does not always pay the judgment right away or at all.  If this happens, the party with the judgment for fees has several options, including garnishing wages or bank accounts, or filing a contempt and enforcement petition, depending on the language of the judgment for fees.
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Every branch of the United States Armed Forces has a general order regarding family support.  Each order applies to service members until the civilian court enters an order for family support.  For example, if a service member separates from his spouse, and files for divorce, his branch’s family support order says what he must do or pay to support his spouse until the civilian court enters an order granting or denying spousal maintenance and determining child support if the couple has children.
 
The orders vary from service to service, but they are generally based on the service member’s Basic Allowance for Housing (“BAH”)and the number of dependants the service member must support.  For example, when I was on active duty, the Marine Corps general order for family support was, in a nutshell, that the service member must pay a fraction of the BAH to the spouse, and the fraction of the BAH depended on how many children the service member had who were living primarily with the spouse.
 
If a service member does not support his or her dependants, the spouse may contact the service member’s command and the command must enforce the general order.  The local legal assistance office can help service members and their spouses in determining what the service member must do, contacting the service member’s command, and helping with filing in the civilian courts.  In my experience, the military general orders generally require larger payments to the dependant spouse than the civilian courts.
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Many people ask when they can stop worrying about their ex-spouse collecting child support.  The short answer: never.  Many other people ask if it has been too long to collect unpaid child support.  Arizona has no statute of limitation on child support that the court ordered a parent to pay.  Arizona also has no statute of limitation on a judgment for unpaid child support.
 
If a judge entered an order that a parent pay child support, there is no time limit on when the other parent may collect any unpaid child support.  Also, a court cannot retroactively change child support.  Therefore, if a parent loses his or her job and stops paying child support, that parent cannot get out of the child support debt by later showing that his or her income changed.  In order to get relief for a change in financial circumstances, that parent must file a petition to modify child support right away.
 
If a judge enters a judgment for unpaid child support, whether it is child support that a parent did not pay after the judge entered a child support order or whether it is for child support prior to a court order, that judgment never expires.  Most judgments in Arizona expire after five years unless the judgment creditor renews the judgment, which requires the filing of an affidavit of renewal of judgment.  However, the affidavit is not necessary to renew a child support judgment because child support judgments do not expire.
 
The only way that the passage of time can help a parent who did not pay child support or hurt a parent who did not collect child support is when there is no order for child support.  When a parent seeks a child support order, the court may go back up to three years and enter a judgment for past child support.  Therefore, if a parent never seeks child support, the other parent can only escape all liability for child support when the child turns 21years old.  There are a few narrow exceptions.  Another example would be if the parents separated when the child was six years old and the custodial parent did not seek child support until the child was 12 years old.  The court in that instance would only be able to enter judgment for past child support back to when the child was nine years old. 
 
However, the parent who is to receive child support should not take too much confidence from the fact that there is no statute of limitation for child support.  If a parent does not collect for too long, the arrears and interest will eventually reach an amount that will be impossible to completely collect because of sheer volume.  For example, if a parent does not make court-ordered child support payments and owes $300,000.00, is 50 years old, and has never earned more than $60,000.00 in a year, the chances are that the other parent will never collect that $300,000.00.
 
Therefore, the lesson is that a parent whom the court orders to pay child support should pay child support.  Death is very nearly the only way to get out of it, and even if that parent reaches the point at which it is impossible to collect all of the arrears, the arrears will likely dog that parent until death.  If that parent’s financial circumstances change making it more difficult to pay child support, then that parent should file to modify child support instead of assuming that the court will just change it later.  Also, the other consequences of not paying child support can be much more severe.  As for the parent who receives child support, the lesson is to collect unpaid child support without waiting too long, to not give up just because it has been a long time since the last payment, and to establish child support before waiting several years.
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For many years, Arizona courts would enter orders granting visitation to grandparents if the courts found that one of three conditions existed (parents unwed, parents divorced, or a parent deceased) and that it was in the child’s best interest.  However, the statute for grandparent visitation changed in 2013 and a recent Arizona Court of Appeals decision interpreting the statutory change has made it more difficult for grandparents to get a court order for visitation with grandchildren over a parent’s objection.
 
The amended statute, A. R. S. § 25-409, requires the courts to give “special weight” to a parent’s decision to oppose visitation between a child and a nonparent.  The Arizona Court of Appeals in Goodman v. Forsen, 239 Ariz. 110, 366 P.3d 587 (App. 2016), held that a parent opposing visitation does not bear the burden of proof, and that “special weight” means the party seeking visitation must prove that a fit parent’s decision to deny visitation would substantially impair the child’s best interest.
 
In Goodman, the trial court awarded visitation to the mother’s ex-girlfriend over the mother’s objection because it found the mother's testimony regarding her reasons for opposing visitation was not credible.  The appellate court ruled that the mother’s credibility was not the proper focus of the inquiry, and by making it the focus of the inquiry the trial court had improperly placed the burden of proof on the mother.  The Court of Appeals reversed the trial court’s decision and remanded the case to the trial court to determine whether the fit mother’s decision would substantially impair the child’s best interests.
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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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