Thursday, 15 September 2016 10:23

Do's and Don'ts of Custody Cases in Arizona

Here are some things to avoid and some things to do when you have a custody/legal decision making/parenting time battle with the other parent of your children.
 
DON’T:
 
1. Send angry text messages or email to the other parent.  Anything you write that is inappropriate or makes you look violent, threatening, reckless, etc. will hurt your case if the judge sees it and you can bet that the other parent will show it to the judge.
 
2. Post anything dumb on social media.  The same goes for social media.  Also, portraying a party lifestyle, or posting pictures of guns, or posting about the new person you are dating can also hurt your case.  In fact, don’t use social media at all.
 
3. Say anything dumb.  You never know if someone is recording what you are saying.
 
4. Do anything dumb.  In my career, I have seen all kinds of dumb things that people get caught doing while they are fighting for their children.  Don’t commit crimes, drive drunk, do drugs, disappear, hide the children, make death threats, or do anything else that will hurt your case if the judge finds out about it.
 
5. Call the other parent incessantly or in the middle of the night.  Don’t make yourself look like a stalker, harasser, or abuser.
 
6. Put your children in the middle of the conflict with the other parent.  This almost always backfires.  More importantly, it is very bad for your children.
 
7. Allow the other parent to push you around.  This doesn’t mean that you should act aggressively or be unreasonable.  However, don’t move out of the house just because the other parent told you to move out.  This makes the other parent the de facto primary residential parent.  Don’t put up with the other parent withholding the children from you.  If the other parent withholds the children and you file with the court right away, you will get to see your children sooner.  If you put up with it for a long time, then you don’t look like your children are your priority when you do get around to filing with the court.
 
8. Be unreasonable.  Three quarters of getting what you want in Family Court is being reasonable.  Don’t withhold the children from the other parent unless you have a very good reason. Most often, a very good reason is drugs or severe abuse.  Don’t take away the car that the other parent is driving or remove his or her insurance.
 
9. Wait.  There is little advantage to filing first, but you should not put off filing with the court.  The sooner the court establishes your rights the better.  If the other parent is withholding the children or allowing very little contact with the children, the sooner yo file the sooner it will stop.
 
10. Give up.  You have a long-term goal.  It may seem like you are losing now, but you will not lose in the long run if you do the right things and don’t give up.
 
DO:
 
1. Assume the judge will see anything you write or post.  Only write and post things that you will not be afraid to explain to the judge.
 
2. Assume the judge will hear anything you say.  Only say things that you will not be afraid to explain to the judge.
 
3. Communicate in writing with the other parent as much as possible.  People can lie about what you said, but they can’t lie about what you wrote.
 
4. Remain civil with the other parent.  Not being civil hurts your case.  Being civil helps your case.  More importantly, this is what is best for your children.
 
5. Cooperate with the other parent to the extent possible.  Show the judge that you are the reasonable, cooperative parent.
 
6. Focus on the best interest of your children, not on what is best for you or how mad you are at the other parent.  This is the most important step in not screwing up your children during your legal dispute with the other parent.  It will also help your case.
 
7. Send civil, detailed emails to the other parent regarding decisions that the two of you must make for your children.  Show the judge that you can co-parent and make responsible decisions.  If the other parent responds in kind, you have begun a good co-parenting relationship with the other parent, which is good for your children.  If the other parent refuses to respond or responds inappropriately, you have created evidence favorable to your case.
 
8. File quickly.  Waiting usually hurts you.
 
9. Hire an attorney.  This may sound self-serving, but you don’t do this every day. An attorney does do this every day.  An attorney knows the law, knows the judges, knows the procedure, knows the ins and outs of custody battles, knows what is persuasive, and can look at your case with an unemotional eye.  Your children are worth it.
 
10. Try to settle.  The two people in the whole world in the best position to make decisions in the best interest of your children are you and the other parent.  If you and the other parent cannot make a decision on your own, a stranger who doesn’t know you, the other parent, or your children, but who happens to be a judge, will listen to two or three hours of evidence and make a decision for you.  It might be a decision you hate.
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I always try to settle my cases in family court and one of the best ways to do that is through mediation.  If the parties settle, they may not be completely happy with the outcome, but they controlled the outcome and avoided a decision from a judge, who may have given them an outcome that they hate.  As I tell my clients in legal decision making (custody) and parenting time (visitation) cases, the two people in the whole world in the best position to make a decision in the best interests of the children are the mother and father.  If the mother and father cannot come to a decision together, a stranger who happens to have been appointed to be a judge (and who does not know the mother, father and children) will listen to about three hours of evidence and impose a decision on them. 
 
Settlement is better.  One good way to work towards a settlement is to use a mediator.  A mediator is a neutral person who can give both sides an unbiased perspective and help them reach a settlement.  One way to mediate a case with children is a parenting conference.  The judge will appoint a parenting conference officer who will hold a conference with both parties for about two to three hours.  The conference officer will try to get the parties to work out a settlement regarding the children.  If the parties are unable to reach an agreement, the officer will make a limited written report to the judge about his or her observations during the conference and may make recommendations to the judge regarding the children.  The officer will report any partial agreements.  Each party must pay $300.00 for the parenting conference, but the judge may order that the parties can make payments.  Attorneys do not attend the parenting conference. The conference officer may interview the children.
 
Another way to mediate is for the judge to refer the parties to Alternative Dispute Resolution (“ADR”) for a settlement conference.  The parties’ attorneys attend this conference with their clients and the conference will include all issues before the family court.  The mediator in this case is an attorney appointed as a judge pro tempore with the authority to enter orders.  The parties do not pay for this conference.  If the parties reach a settlement the judge pro tem can enter the agreement on the record and approve it as a final order of the court.  If they do not reach an agreement, the judge pro tem simply reports to the judge that the parties did not reach an agreement.  A good judge pro tem can get a case settled that the parties did not think would settle.  ADR settlement conferences usually last about half a day.
 
Finally, the parties can go to private mediation.  Private mediation is expensive and the mediator does not have any authority because the court did not appoint the mediator.  The mediator generally follows the same process as the ADR judge pro tempore and may help the parties draft a settlement agreement if they reach an agreement.  Private mediation can be very helpful in settling a case when a parenting conference and ADR are not available. 
 
Anyone in family court in Maricopa County, Arizona should at least try to reach a settlement with the other party.  Mediation can be very helpful towards reaching a settlement.
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How do Arizona courts deal with legal decision making (custody) and parenting time (visitation) modification issues when one parent’s service in the United States armed forces necessitates the modification?  Generally, the courts may modify legal decision making and parenting time when to do so is in the children’s best interest.  The court must consider the terms of a military parent's family care plan when considering the child's best interest during that parent's military deployment.
 
If the children live primarily with the military parent, and that parent receives temporary duty, deployment, activation or mobilization orders that require that parent to move a substantial distance away, Arizona courts will not enter a final order modifying parental rights and parent-child contact until ninety days after the deployment ends, unless the military parent agrees to the modification.  This means that Arizona family courts will not modify a military parent’s rights and responsibilities to his or her children while that parent on deployment or temporary duty.
 
Furthermore, Arizona courts will not consider a military parent's absence caused by deployment or mobilization or the potential for future deployment or mobilization as the sole factor supporting modification.  Note, however, that Arizona courts may consider this as one factor, as long as it is not the only factor.
 
Arizona courts will, after a hearing, grant temporary orders modifying parental rights and responsibilities during the period of deployment or mobilization if the circumstances meet the following requirements: 1) the military parent has received orders that require him or her to temporarily leave; and 2) that parent’s deployment will have a material effect on his or her ability to parent the children.  For example, the court may enter temporary orders if a Marine Reservist received orders to Iraq for six months.  The court may also allow the military parent to present testimony and evidence electronically if the other side gets advance notice and the parent’s military service has a material effect on his or her ability to appear in court in person.  At the request of the military parent, for the duration of the military parent's absence, the court may delegate the military parent's parenting time, or a portion of that time, to a child's family member, including a step-parent, or to another person who is not the child's parent but who has a close and substantial relationship to the minor child, if the court determines that is in the child's best interest. The court will not allow the delegation of parenting time to a person who would be subject to limitations on parenting time, such as supervised parenting time.   All temporary modification orders will include a specific transition schedule to facilitate a return to the pre-deployment order within ten days after the deployment ends, taking into consideration the child's best interests parents do not come to an agreement on their own, which is for what all parents should strive.
 
Military parents should know their rights and responsibilities.  Parents who serve their country should not have a disadvantage in family court due to their service.
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I very often hear from people that they heard that a child can decide where they will live and with which parent when the child is 14 years old (or some other age).  This is not true.  My answer to the question “How old does my child need to be to decide with whom they live?” is always the same: 18 years old.
 
The wishes of the child are a factor in the Arizona legal decision making (custody) and parenting time statutes, but they are only one factor.  The older and more mature the child, the more weight the child’s wishes will carry with the judge.  However, they are still only one factor among many factors.  Also, the judge must explore the reasons for the child’s wishes.  The reasons may cause the child’s wishes to lose some or all weight.  For example, if a 17-year-old child tells a Family Court Advisor that he wants to live with his dad because his dad lets him smoke pot, the judge may not just ignore the child’s wishes, but give weight to the opposite of what a child wants.
 
Therefore, Arizona Family Courts will consider a child’s wishes, and will give more weight to the child’s wishes depending on the age and maturity of the child, but the child does not get to “decide” where the child lives until the child reaches the age of majority.
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Unfortunately, many people lie to the court during legal decision making (custody) and parenting time cases.  Often, the person who is acting badly is the person lying to the court about the other parent.  Too often, these people get away with it because the judge does not know who to believe.

One American soldier just solved this problem with his GoPro camera.  His wife is accusing him of domestic violence while she is committing domestic violence against him.  He hid his camera on his body and captured her not only committing domestic violence against him, but threatening to falsely accuse him of committing domestic violence against her.  The story is here: http://www.wtsp.com/story/news/2015/09/20/soldier-uses-gopro-to-prove-wifes-domestic-abuse/72545676/

People often ask if it is legal to record telephone conversations and face-to-face meetings.  People often tell me that they want to record the other party because the other party lies about what happens or what people say.  In Arizona, it is legal to record a conversation of which you are a part.  Therefore, you can legally record your phone conversations and encounters that you have with other people.  You may not legally record the conversations of other people without their permission.

The story about the soldier who solved the he-said-she-said problem shows how to effectively use recording devices when the other parent lies to the court.

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The Superior Court's website in Maricopa County has many useful forms for people representing themselves in court.  The family law category of forms is the most impressive, with forms for divorce, annulment, legal separation, child support, spousal maintenance, alimony, temporary orders, custody/legal decision making, parenting time, and many other topics.  I do not particularly like the forms because they are too long, sometimes don't make much sense, and lack flexibility, but they are far better than the alternative of not submitting anything at all, or someone with no legal background or training attempting to write court filings.  If you decide to use the court's forms, my advice is to do so with the advice of an experienced lawyer.  However, if you are using the forms, it is probably because you cannot afford a lawyer.  In that case, be very careful about what you sign and submit to the court.  Do not be afraid to cross out requests in the form that you do not want to make.

 

Aside from forms for family law, the court's website has many useful forms for probate, juvenile law, civl law, and powers of attorney.  The court has sufficient probate forms to complete an entire informal probate from beginning to end, juvenile court forms sufficient to complete a voluntary guardianship, and four powers of attorney sets of forms (general power of attorney, special power of attorney, parental power of attorney, and revocation of power of attorney).  The court also provides detailed instructions for its forms.

 

Again, my usual advice is to hire an attorney because attorneys have experience, are familiar with the judges, have an emotional detachment to your case, and know the potential pitfalls.  However, sometimes doing something on your own is better than doing nothing and the reality is that not everyone can hire an attorney.

 

This is the link to the Maricopa County Superioe Court's forms (Self Service Center): http://www.superiorcourt.maricopa.gov/SuperiorCourt/Self-ServiceCenter/

 

Good luck!

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Families face many changes during a divorce and one of the biggest changes is the time they spend during the holidays. They will most likely no longer spend time together with the entire family (i.e., with both parents) and many of their holiday traditions will never be the same. Common problems include parents who are unable or unwilling to make an agreement as to how the children will spend their time during the holidays, poor behavior by one or both parents, travel plans, lack of communication between the parents, and the court’s availability (or lack thereof) to solve these problems in time for a particular holiday.

Often, parents cannot agree on how the children will spend their holiday time, so Arizona courts try to enter orders for holiday parenting time that are fair and in the children’s best interests. Courts will typically evenly divide the holidays between the parents. The holiday schedule always supercedes the regular parenting plan. For example, if Christmas Day falls on a day that would typically be the mother’s day with the children, but the father gets the children for Christmas this year, the court’s order is that the children will be with their father on Christmas.

A typical holiday schedule will usually say something like the children will be with the mother on Christmas Eve and with the father on Christmas Day in odd-numbered years and will be with the father on Christmas Eve and the mother on Christmas Day in even-numbered years. They will be with the mother on Thanksgiving in odd-numbered years and with the father in even-numbered years. They will be with the mother on Easter in odd-numbered years and with the father in even-numbered years. They will spend every Mother’s Day with the mother and every Father’s Day with the father. They courts will also define each holiday, such as setting forth a time that the holiday parenting time begins and ends, in order to avoid future disputes as to when a parent gets to pick up the children to begin a holiday. Ideally, the parents will discuss the holiday schedule and will be willing to compromise and work together in order to agree on their own holiday schedule without having to ask the court to impose a holiday schedule on them and their children.

After the court orders a holiday schedule, it is easy to tell when each parent gets the children during the holidays. However, during a pending divorce, the parents may not have a holiday schedule. For example, parents who just recently filed for divorce cannot agree on how the children will spend Christmas this year. What should they do? First, each parent should consider the following facts: the children will want to spend time with both of them; they should consider adopting a plan that will allow the children to participate in as many of their traditional Christmas activities as possible; Christmas is important to both parents; and whatever schedule they get will probably be reversed the following year. Most important, as I always tell my clients, the two people in the entire world who are most qualified to make a decision in the best interests of their children are the mom and the dad. If the mom and the dad cannot or will not make a decision together, a judge who is a stranger will make the decision for them. Most judges in Maricopa County will put genuine effort into making a good decision with the information available to them, but no judge in Maricopa County is the children’s mom or dad. If the parents cannot make a decision together, they may seek an order from the court and should do so as soon as possible. The Superior Court usually has a very tight schedule around the holidays. Therefore, the longer the parents wait, the less likely the court will be to resolve the problem for them. If they cannot get an answer from the court in time, they may consider using a private mediator.

Another typical problem with holiday parenting time is travel. For example, one parent may want to take the children out of school to travel, one parent may not like the other parent’s proposed travel plan, or one parent may not want the children to travel to see the other parent’s family. The parent who is traveling should give the other parent the itinerary as soon as possible and at least as early as the parenting plan requires. If the other parent does not like the travel plan, he or she must remember that it is the other parent’s parenting time and, unless the travel plan proposes an unreasonable danger to the children, there is probably nothing that he or she can do about it. As for taking the children out of school, the parent taking the children out of school should coordinate with the children’s teachers on issues such as homework. Unless the children are at least average students, there is usually nothing wrong with taking the children out of school, as long as it is not for an excessive number of days. As for objecting to the children seeing their extended family during the holidays, the non-traveling parent needs to take a hard look at why he or she has an objection. Unless someone proposes a real danger to the children, each parent has the right to take the children around whoever he or she wants during the holidays (or any day they have the children). Courts will not order a parent to not take the children around someone just because the other parent does not like that person. The best interest of the children is usually to have a good relationship with their extended family and to see them on holidays. Obviously, each parent should not tolerate his or her family making negative comments about the other parent in the children’s presence. As with other holiday parenting time issues, the parents must truly consider the children’s best interests. Also, if they have to seek the court’s intervention, they should do so as soon as possible.

Finally, parents should be careful about what they say to their children, particularly about the other parent. I tell my clients that they should not say or write anything that they would not want to explain to a judge. Three subjects that inspire many parents to say stupid things to their children are the holiday parenting plan, gifts, and money problems. Examples of things to not say to children about the holiday plan are that you will be lonely and sad without them; remind them that they will not be together with you during the holiday or part of the holiday; or inform them that they will miss out on something like a visit with grandparents because the other parent got a court order that they spend time with the other parent. All these comments do is make children feel guilty and sad. Better comments include telling the children how lucky they are to get to have two celebrations or that you and the other parent have made sure that the children get to spend time with two families that love them.

As for gifts, bad and selfish comments include telling the children to not bring gifts from the other parent to your home or forbidding them to bring gifts from you to the other parent’s home (yes, people actually do this!) and criticizing gifts from the other parent, the other parent’s family, or the other parent’s new romantic interest. If you do any of these things, all you are doing is ruining your child’s enjoyment of their gifts. A better approach is to do the opposite. Allow your children to take their gifts to either home and be excited about their gifts, no matter the source.

Hurtful comments about money include telling your children that you cannot afford to buy them the gifts they want (or to do anything else that has a cost) because of one of the following circumstances: the divorce, you pay too much in child support or spousal maintenance, or the other parent has not paid enough child support or spousal maintenance. This is really an attempt to make the children angry at the other parent. A better approach is to explain that you do not have much money right now, but you will still have a wonderful holiday together. If the other parent can be as mature as you, you might try to coordinate with him or her to make sure that the children get everything you want them to get.

What all of this really means is one simple thing: if both parents can be mature and focus on what is best for their children, everyone will be better off.

Merry Christmas!

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The Arizona Court of Appeals has recently reminded Superior Court judges that they must make their own findings and make their own decisions in physical custody (parenting time) cases. In a case known as Nold v. Nold, the father moved out of the family home early in the proceedings. Prior to trial, the parties’ children lived equally with both parents. However, at trial the mother took the position that the children should live primarily with her during the school year and equally with both parents during the summer. The father asked the trial court to order that the children continue to reside equally with both parents. The trial court appointed a custody evaluator who recommended that the children live primarily with the mother during the school year and equally with both parents during the summer.

After the trial, the trial judge adopted the custody evaluator’s recommendation. In support of this ruling, the trial judge stated that "no persuasive evidence established a sound reason for deviating from the parenting time schedule [the custody evaluator] suggested." The trial judge also stated that he has considered the statutory factors that he was supposed to consider in making his decision. However, he made no specific findings regarding those factors.

In reversing the trial court, the appellate court said that when physical custody (parenting time) is an issue at trial, the trial court must make specific findings regarding the statutory factors as to the children’s best interests. Failure to make such findings is an abuse of discretion. The trial court did not make any statements in its ruling regarding the statutory factors other than to state that no persuasive evidence established a reason to not adopt the custody evaluator’s recommendation.

The mother argued that the trial court’s order was sufficient because it adopted the custody evaluator’s assessment, which discussed the statutory factors. However, the assessment was merely a trial exhibit and did not contain the trial court’s specific findings. Furthermore, the appellate court noted that the trial court appeared to use the custody evaluator’s recommendations as a baseline for custody, which indicates that the trial court delegated its obligation to independently weigh the evidence. The appellate court said, "By using the report as the baseline for custody, the family court delegated its judicial decision to the evaluator, abdicated its responsibility to decide the best interests of the children, and therefore abused its discretion." The appellate court therefore vacated the trial court’s decision.

The lesson from this case is that trial courts must make their own decisions. This means that if a custody evaluator makes an unfavorable report, you still have a chance to show the judge that the evaluator is wrong. It also means that if the judge simply adopts whatever the evaluator says in the report, you may have a good chance of a successful appeal.

 

 

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Some appellate decisions just warm my heart. The Arizona Court of Appeals recently issued such a decision, Calvin B. v. Brittany B., and ruled against one of the most despicable types of parent: one who does everything he or she can do to limit, control, and even eliminate the other parent’s relationship with their child.

Calvin and Brittany divorced when their son was very young. They agreed to an arrangement wherein Brittany would have sole legal and physical custody of their son, but Calvin would have "liberal" parenting time as the parties agreed. Brittany then proceeded to limit Calvin’s contact with their son. As a result, Calvin sought the court’s help in securing more time with him. Over the course of the next several years, Brittany used orders of protection and other barriers to block Calvin’s parenting time. She also violated the court’s orders several times. Calvin, however, was not a model parent either, failing to exercise a lot of his parenting time, not immediately seeking enforcement of the court’s orders, and failing to take a parenting class that the court had ordered him to take.

Brittany eventually filed in juvenile court to terminate Calvin’s parental rights on the basis that Calvin had abandoned their child. The Superior Court granted the termination petition and Calvin appealed.

"Abandonment" means the failure of a parent to provide reasonable support and to maintain regular contact with the child, including providing normal supervision. Abandonment includes a judicial finding that a parent has made only minimal efforts to support and communicate with the child. Failure to maintain a normal parental relationship with the child without just cause for a period of six months constitutes prima facie evidence of abandonment. When circumstances prevent a parent from bonding traditionally with a child, the parent must act persistently to establish the relationship and vigorously assert his or her rights. Non-support alone does not establish abandonment.

This is the heartwarming part: the Court of Appeals overturned the Superior Court and cut right to the chase:

   The record shows that for much of the period after the dissolution in 2008,
   Brittany interfered with Calvin’s opportunity and ability to develop a normal
   parental relationship with their son. A parent may not restrict the other parent
   from interacting with their child and then petition to terminate the latter’s
   rights for abandonment. For this reason, we conclude the record in this
   unusual case lacks evidence sufficient for the court to conclude that Brittany
   proved by clear and convincing evidence that Calvin abandoned his son.

The Court of Appeals also stated, "Having herself curtailed Calvin’s ability to develop a relationship with his son, Brittany did not prove by clear and convincing evidence that Calvin abandoned the child by failing to provide normal parental supervision," and "We cannot accept the proposition that the court acted properly in granting Brittany’s petition to terminate Calvin’s parental rights based on abandonment because he did not take legal measures to reduce the barriers Brittany erected to his ability to parent." In fact, the appellate court remarked that, given the hurdles that Brittany erected, Calvin’s ability to manage as many visits as he did manage was "remarkable." Also note that the Court of Appeals examined both parent’s behaviors: the court examined Brittany’s bad conduct but also scrutinized Calvin’s conduct in attempting to build a relationship with his son.

One may think that this is a no-brainer, but remember that the trial court granted the petition to terminate Calvin’s parental rights! The trial court judge didn’t get it. It took an appeal to set things right. Although Calvin ultimately did not lose his parental rights, he suffered in other ways, including not seeing his son for long periods, only seeing his son a little bit when he did see him, having his parental rights terminated for a time, the agony of the termination and appeals process, and the damage to his relationship with his son. However, Calvin could have avoided much of this by acting differently.

First, Calvin should have avoided a vague parenting time order. He agreed that he would see his son when the parties agreed (which really means whenever Brittany feels like it). If Calvin would have insisted on a set schedule in the Court’s order he would not have had to rely on Brittany’s willingness to allow him to see their son.

Second, Calvin should have followed the court’s orders. Calvin failed to pay most of his child support, which is a factor in abandonment cases. It also has consequences in non-abandonment cases. He also failed to take a parent information class and, when the Superior Court ordered that he could have more parenting time after he took it, he failed to take it for over a year! Furthermore, Brittany used this against him in the abandonment case. Had Calvin taken it the first time, or even the second time, he could have seen his son more and Brittany would have had less to use against him in the abandonment case.

Third, Calvin should have exercised all of the parenting time that the court allowed him to exercise. I never understand why people fight for parenting time, and then only use some of what they get or none at all. They are simply proving that the other party was right and hurting themselves in future court battles. More importantly, they are missing time with their children that they will never get again. Had Calvin used all of his parenting time, he would have never had to worry about the abandonment case.

Finally, Calvin should have rigorously enforced his rights. Calvin did eventually seek enforcement in the Superior Court, but that was after about three years of Brittany controlling and restricting his contact with their son. Had Calvin rigorously enforced his rights, he probably would have won the abandonment case at the trial court level or would not have had to face it at all. More importantly, he would not have missed out on so much time with his son. When the other parent behaves like Brittany behaved in this case, the only sensible course of action is to rigorously enforce your rights. It is aggravating, stressful, and difficult, but losing your child or losing a lot of time with your child for several years is much worse.

Don’t be like Calvin (or Brittany). If you need help not being a Calvin (or Brittany), I would love to talk to you. I am a Phoenix are family law and juvenile law attorney.

 

 

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NOTE: EVERYTHING WRITTEN BELOW IS FOR INFORMATIONAL PURPOSES ONLY. IT IS NOT LEGAL ADVICE AND DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. READING A BLOG IS NO SUBSTITUTE FOR CONSULTING WITH AN ATTORNEY.

You are divorced and have children with your former spouse, or you were never married and have children with a former significant other. One day, the other parent announces that he or she will be moving your children to another state, making it much more difficult or impossible to see your children as often as you do now. What should you do?

Although the answer depends on your legal situation, each answer begins the same way: talk to the other parent. Some parents communicate better than others, but it does not hurt to try no matter how hostile the other parent behaves. If you emphasize not only what the move will mean to you but what it will mean to the children, you may make some headway. If the children are older, it may be easier to convince the other party to not attempt to move the children because older children often do not wish to leave their friends, school, community, and routine. You should also emphasize that children need regular contact with both parents. If you can get the other parent to realize that they would not only be taking the children from you, but taking you from the children, they may reconsider the move.

If you cannot convince the other parent to not move (my cynical side says WHEN you cannot convince the other parent), your next move depends on your situation. If you are the father, have never been married to the mother, and have never sought a court order regarding the children, you must act immediately. Children born out of wedlock in Arizona are in the sole custody and care of the mother - the father has no legal rights to the children. You should immediately file an action to establish paternity, legal decision making (custody), parenting time, and child support. You should also file a motion for temporary orders seeking an order for not only contact with the children, but also an order that the mother not move the children pending the outcome of the paternity case.

If you are the mother, have never been married to the father, and have no court orders regarding the children, the children are in your sole custody and care: the father cannot move the children without your consent. You should seek a court order anyway in order to establish paternity, a parenting plan, and child support, but your situation is not as urgent as it is for fathers in this situation.

If you are a married spouse and no one has filed for divorce or legal separation, either parent may move the children out of Arizona. However, once a spouse files for divorce or legal separation, the court issues an order that neither parent may move the children out of Arizona without a court order or the written consent of the other parent. Therefore, you can stop the move by immediately filing for divorce or legal separation.

Finally, the situation that most people facing the other parent who wants to move the children are in: you are divorced or never married and there is an order in place regarding the children. Under Arizona law, a parent may not move the children out of Arizona or more than 100 miles within the state after first giving 60 days written notice (mailed return receipt requested) or getting a court order or getting the written permission of the other parent if either of the following is true: the other parent has joint legal decision making (joint custody) or the other parent has parenting time (even if the moving parent has sole legal decision making). If you receive 60 days written notice of the proposed move, immediately file a petition with the court objecting to the move. The reason for the 60 days written notice is so that the non-moving parent can initiate an action in court opposing the move. If the other parent moves anyway, immediately call the police to make a complaint for custodial interference and file an enforcement and contempt action seeking the immediate return of the child to Arizona. Several years ago I had a client who ignored this advice and moved her child out of state. She regretted it.

I understand that in most states the parent who has custody or the parent with whom the children primarily live usually has an easy time getting a court order allowing a move out of state. In Arizona, however, it has been much more difficult. The trend seems to be that the parent wanting to move the children must demonstrate a compelling reason to do so. Also, the involvement and quality of the non-moving parent usually plays a major role in the judge's decision. For example, a parent who rarely exercises parenting time and who is an alcoholic will make it much easier for the other parent to move than a parent who exercises equal parenting time and has no substance abuse issues.

The statute governing this issue is A. R. S. Section 25-408, which sets forth the factors that the court must consider in deciding this issue. The burden of proof is on the parent proposing the move to show that relocating outside the State of Arizona is in the child's best interest. In determining the child's best interest the court shall consider all relevant factors including the following factors:

1. Whether the relocation is being made or opposed in good faith and not to interfere with or to frustrate the relationship between the child and the other parent or the other parent's right of access to the child.

2. The prospective advantage of the move for improving the general quality of life for the custodial parent or for the child.

3. The likelihood that the parent with whom the child will reside after the relocation will comply with parenting time orders.

4. Whether the relocation will allow a realistic opportunity for parenting time with each parent.

5. The extent to which moving or not moving will affect the emotional, physical or developmental needs of the child.

6. The motives of the parents and the validity of the reasons given for moving or opposing the move including the extent to which either parent may intend to gain a financial advantage regarding continuing child support obligations.

7. The potential effect of relocation on the child's stability.

8. The past, present and potential future relationship between the parent and the child.

9. The interaction and interrelationship of the child with the child's parent or parents, the child's siblings and any other person who may significantly affect the child's best interest.

10. The child's adjustment to home, school and community.

11. If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time.

12. The mental and physical health of all individuals involved.

13. Which parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent. This paragraph does not apply if the court determines that a parent is acting in good faith to protect the child from witnessing an act of domestic violence or being a victim of domestic violence or child abuse.

14. Whether one parent intentionally misled the court to cause an unnecessary delay, to increase the cost of litigation or to persuade the court to give a legal decision-making or a parenting time preference to that parent.

15. Whether there has been domestic violence or child abuse.

16. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time.

17. Whether a parent has complied with the requirement to take the parent information program class.

18. Whether either parent was convicted of an act of false reporting of child abuse or neglect.

Often, an attorney with experience with this issue can really help. Whether you talk to me or talk to another attorney, talk to an experienced family law attorney. Good luck!

 

 

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