Friday, 19 July 2013 11:50

Parents' Rights

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Mothers and fathers concerned about their Arizona custody rights get a lot of bad information. This article will take some of the confusion and myth out of this area of family law and get parents who are going through custody cases off to a good start.

People often believe that there is an obvious bias in family courts against fathers. That is silly. If such a bias existed, then joint legal decision making (joint custody) would not be by far the most common result and equal time parenting plans would not be so common. Parents should instead focus on the facts and evidence they need to support their position.

1. Equal parenting time

The first question parents should ask is how much time they can devote to caring for their children. Although both parents will probably be working full time, this is not just a question of work schedule but also the age of the children. For example, a parent that works a traditional 40 hour per week schedule but has older teenagers (15-17 year olds) and can devote evenings and weekends to the children's care should consider an equal time arrangement because the children can often care for themselves for the very short period of time between school and the end of the parent's work day or similar arrangements can be made for the children's care.

The younger a child gets, the more difficult these questions become and the more care the parents and their attorneys must take to evaluate the situation to come up with a schedule that will afford quality parenting time and be in the children's best interest.

2. Equal parental decisions

Joint legal decision making means that both parents are equally involved in the decision making process concerning the children. This includes all the major decisions regarding the health, education, safety and welfare of the children. Think of joint legal decision making as an equal voice in how your child is raised.

Joint legal decision making should be a priority and is appropriate in all cases except those that involve serious parental conflict, domestic violence, child abuse, substance abuse or those where parents are simply unable to co-parent. If the other parent fits into any of these categories, you should seriously consider asking for sole legal decision making. In Arizona, neither parent has any special privileges or advantages. If you are facing a parent who causes serious conflict, will not co-parent, has alienated or conditioned the children against you or any of the other issues we have listed in this paragraph apply, it is likely not in your children's best interest to have such a parent share in the decision making process.

3. False allegations of child abuse or domestic violence

Nowhere are parents’ rights placed at greater risk than those that involve false allegations of domestic violence or child abuse. Both mothers and fathers make false allegations. Because family courts are very sensitive to protecting children, it can sometimes feel as though simply making allegations without corroboration or evidence is enough to take a parent's rights away. Therefore, parents must be vigilant.

Parents who make false allegations often leave a trail of deception and have a history of it. Evidence tending to show the other parent’s lack of credibility including but not limited to the propensity for false statements and accusations, and documentary evidence such as text messages, emails, social media posts are a good start.

But, in addition, child custody cases that involve false allegations can and often should result in the other parent's deposition (testimony under oath outside of court) being taken as well as discovery (formal and written demand for information). Depositions and discovery can force the other parent to state all of the facts and purported evidence (which should be nothing but a trail of uncorroborated statements in false abuse cases) that he or she claims supports his or her position. These depositions and discovery can sometimes expose the false allegations for what they are and bring to the other side the reality that they are fighting a losing battle.

4. Modification of legal decision making and parenting time when a parent will not relent with alienation or false claims

Most legal decision making and parenting time cases settle. However, there are those that require modification proceedings. If you are a parent that has resolved your legal decision making case and settled for joint legal decision making, even when false allegations were made against you, but the other parent has not relented with the alienation and false allegations, it may be time to seek a modification. Parental alienation and conditioning of the children and ongoing false allegations are dangerous to the children's best interest. Children, especially younger children, are highly impressionable and if one parent consistently disparages the other, that form of emotional abuse can take a toll on the children.

It is your responsibility as a parent to bring this alienation, disparagement and false claims to the family court's attention if you want to protect your children against the ongoing emotional abuse. Family law appellate cases have held that any parent that makes serious false allegations of abuse should generally not have legal decision making.

5. The end

I hope that this article helps you sort through your issues. Thomas A. Morton offers a discounted consultation and would love to discuss your case with you.



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