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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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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The Arizona Supreme Court recently ruled that a father who had not established paternity or filed with the putative fathers’ registry could challenge an adoption when he acted quickly and filed a paternity action in Family Court within the notice period for John Doe fathers.
 
To understand this case, you must know the following facts.  Adoptions are in Juvenile Court and paternity and custody matters are in Family Court.  The putative fathers’ registry, though little known, can be very important in severance and adoption matters.  Registering with it ensures that a potential father will get notice of any case in Juvenile Court that will potentially affect his parental rights.  Failure to register with the putative fathers’ registry is a statutory ground for severance of parental rights.
 
The child in this case was conceived by unmarried parents in January, 2013. After the parents separated, the mother refused contact with the father.  Immediately after the child’s birth, the mother signed an affidavit of paternity falsely stating that she did not know the identity of the child’s father.  She also signed a consent to adopt in favor of the petitioners, and placed the child in their care.  Thirty days after the child’s birth, the petitioners searched the Arizona Putative Fathers’ Registry and found nothing. They filed a petition to adopt and, on November 25, 2013, published a John Doe notice of the pending adoption.  On the same day, the father filed his paternity action, knowing only the child’s date of birth and gender. He served the mother two days later, but she never informed the petitioners of the paternity action.  Unaware of the paternity action, the Juvenile Court granted the adoption.  The father learned of the adoption in February, 2014 and immediately amended his petition to include the previously unknown information about the child (name, place of birth, etc.).
 
The petitioners moved to dismiss the paternity case and the father moved to set aside the adoption. Paternity testing established that the father was the child’s biological father.  The trial court set aside the adoption. The Arizona Court of Appeals affirmed. 
 
On review by the Arizona Supreme Court, the issue was whether a father who timely files, serves and successfully pursues a paternity action under the family law statutes, but who fails to register as a putative father under the juvenile statutes, is entitled to notice of the adoption hearing or instead waives such notice and his right to contest the adoption.  The Arizona Supreme Court held that a father who timely files a paternity action within 30 days of service by publication and timely serves  that action on the mother is not precluded from establishing paternity and does not waive his right to contest the child’s adoption merely because he failed to file with the putative fathers’ registry.  The Supreme Court placed a strong emphasis on the mother’s deception.
 
The lesson from this case is that fathers should register with the putative fathers’ registry and should file paternity actions as soon as possible if they want to preserve their parental rights when the relationship with the mother has ended.  The potential adoptive parents should do everything they can do to give actual notice to parents of the pending adoption in order to avoid having an adoption be set aside later.
Published in Blog
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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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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Thomas A. Morton, P. L. L. C.
2916 N. 7th Avenue, Suite 100
Phoenix, Arizona 85013
(602) 595-6870
info@thomasamortonlaw.com

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