I accept occasional pro bono cases from The Children's Law Center. Recently, The Children's Law Center began offering free classes on child abuse and substance abuse in the context of acting as a family court advisor. I took advantage of them because I would get credit with the state bar for my continuing legal education requirements. Naturally, they asked me to accept an appointment as a family court advisor and I agreed.

A family court advisor is a mental health professional or a family law attorney who investigates a family court case and makes an assessment and a recommendation to the judge regarding legal decision making (custody) and parenting time (visitation). The judge makes the actual determination.

The family court advisor will usually interview both parents, interview children that are old enough for an interview, interview anyone else with relevant information (particularly anyone who lives with either parent), visit each parent's home, and review relevant documents, such as court records, school records, day care records, and medical records. After the family court advisor has gathered all necessary information, he or she writes a report analyzing the information in light of the relevant statutes. At the end of the report, the family court advisor should make an assessment and a recommendation to the judge on legal decision making/custody and parenting time/visitation. Sometimes, the advisor avoids making any specific recommendations, which can be very frustrating to the parties, attorneys, and, I expect, the judge.

In my case, I spent about 40 hours gathering information and writing my report. I interviewed both parents and the child. I also visited both parents' homes and reviewed about 900 pages of documents. I made about 15 pages of hand-written notes and wrote a report 18 pages long, single-spaced. In my particular case, neither party had an attorney and, as I watched the trial, it became apparent that neither parent was going to present any detailed information on the most important factual issues because neither parent really knew how to go about presenting evidence. This is when I realized that I had for sure not wasted my time in writing such a detailed report. The only reason why a lot of relevant information got to the judge was because he had the foresight to appoint a family court advisor.

I enjoyed going to court today and answering the judge's questions, especially because the judge seemed to appreciate my efforts. I am also glad that the judge had me testify last. I had began to wonder if I had wasted my time, but after listening to the other evidence I decided that I had spent my time well. I look forward to reading the judge's decision and learning whether he adopted all or most of my recommendations, or whether he adopted my report as the court's findings.

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One factor in Arizona's child support calculation formula is how much time the children spend with each parent. Therefore, when the courts modify the amount of time the children spend with each parent, it is often appropriate to modify child support as well. The Arizona Court of Appeals recently issued a decision on a case where the trial court modified custody and parenting time, and then modified child support even though neither party had asked the court to do so. The case was Heidbreder v. Heidbreder, 230 Ariz.377, 284 P3d 888 (Ariz.App. 2012).

The Heiderbreders divorced in 2010, and agreed to joint custody and child support in the amount of $1,000 per month, paid by the father to the mother. Later, the mother filed a petition to modify the order to sole custody with supervised parenting time to father. The court granted the mother's petition at trial, and then took evidence regarding child support, even though neither party had asked the court to modify child support. After taking evidence, the court modified child support to $300, paid from the father to the mother. The mother appealed.

On appeal, the Arizona Court of Appeals held that the trial court had the authority to modify child support on its own motion because the statute providing for modification of custody and parenting time allows for a modification of child support whenever a court modifies custody and parenting time. However, the court of appeals also held that parties must have reasonable notice of a child support hearing and must have the opportunity to gather and present evidence. Because the trial court had given the parties no notice of a child support hearing, the court of appeals remanded the matter back to the trial court to hold a proper child support hearing.

The thing to remember in light of Heiderbreder is to always be prepared to modify child support when you asked the court to modify the amount of time the children spend with each parent because, as I heard one Maricopa County Superior Court judge put it, they go hand in hand, like peanut butter and jelly or ham and cheese or chips and salsa.

Thomas A. Morton practices family law, bankruptcy, and civil law in Phoenix, Arizona, and offers a discounted initial consultation.



Published in Blog
Friday, 19 July 2013 11:50

Parents' Rights

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.



Published in Blog

One of the largest concerns for parents in a divorce is legal decision making (formerly known as child custody) and how the family court will decide it. While there are many judges in Maricopa County who seem to lean one way or the other, the gender of the parent is a non-factor in the statutes regarding legal decision making (custody). Many people also think that income or wealth is a factor, but it is not a factor.

Arizona family law courts decide legal decision making based on Arizona Revised Statute § 25-403, which requires the family court to make its decision based on the best interests of the child and consider all relevant factors, including the following:

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

2. 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.

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

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

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

6. 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.

7. 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.

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

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

10. Whether a parent has taken the parent information program class.

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

Arizona family courts do not consider the following factors:

Whether each party was a good spouse or significant other. Many people think that if they can prove that the other party is a bad person or was a terrible spouse, they will "win" the custody battle. However, the family court will only consider things that pertain to the children’s best interest. Telling the family court that the other party committed adultery, or looked at pornography, or is lazy will often give the impression that you are seeking to use the children to punish the other party for issues between you and him or her that have little to do with the children.

Gender. Many people think that the mother gets the children. However, courts do not use gender as a factor in the decision. The family court considers more important factors such as each parent’s relationship with the child and each parent’s availability to provide for the child’s care.

Income. People often ask something like, "How could the court giver her (or him) the kids? She (or he) can’t provide for the kids." However, that is why Arizona has child support. Income is a non-factor in the decision making process. The family court expects parents to provide food, clothing, and shelter. A parent’s ability to provide more impressive food, clothing, and shelter, or additional items, is not relevant to the family court’s decision.

The following items are also important:

1. Arizona family law courts can award sole legal decision making, which means that the parent with sole legal decision making makes the children’s major decisions for them, such as decisions regarding health, education, and welfare. Joint legal decision making means that the parents make the decisions together. Joint legal decision making far more common than sole legal decision making.

2. The older and more mature the child, the more weight his or her preference will have on the court’s decision.

3. Making unsubstantiated or false allegations against the other party, such as abuse, neglect, alcohol abuse, or illegal drug use, will often backfire. Credibility matters, and making serious allegations with nothing to substantiate them will damage a parent’s credibility.

4. The more reasonable party often gets what he or she wants.

5. The best outcome of a legal decision making (custody) case is a settlement. There are two people who know the children better than anyone else and who are most qualified to make a decision that is in the children’s best interest: their mom and dad. If the children’s parents cannot focus on the children’s best interest instead of focusing on other things, then a stranger who happens to be a judge will listen to about three hours of evidence and will make a decision. The judge will do his or her best to make a decision in the best interests of the children, but the judge does not know the parents or children and is not in the unique position of the parents. Therefore, the best outcome is when both parents focus on their children, not on themselves or the other parent, and make an agreement.

6. The court’s order is a guideline and a backup plan. Whether the family court’s order is the result of a judge’s decision or the parents’ agreement, the parents can deviate from it any time they want to do so, as long as they BOTH agree to do so. If the parents cannot agree, they must stick to the order. Ideally, the parents will be flexible and will work with one another for the children’s best interests. For example, Dad has the children this weekend. Mom wants to take the children on an annual extended family camping trip with her. If they go, the children will see extended family that they love and do not see very often. Dad should allow Mom to take the children. In return, Mom should be flexible in the future and perhaps allow Dad to have the children on her next scheduled weekend with them.

If you are in a legal decision making (custody) case and need to speak with an attorney, Thomas A. Morton is available for you. Thomas A. Morton is a divorce and custody attorney serving Phoenix, Glendale, Peoria, and every other city in Maricopa County.

Published in Blog

On January 1, 2013 Arizona's new statutes on custody and parenting time will take effect. Among the coming changes will be a change in terminology from "custody" to "legal decision making." More importantly, the new statutes require a court to "maximize" the non-primary residential parent's parenting time. Of course, we will not know for sure what this means until Arizona's courts have interpreted the new statutes. However, the new statutes seem to require Arizona's courts to truly maximize a parent's time with his or her child, rather than "giving" the child to one parent and giving the other parent every other weekend from Friday evening until Sunday evening.

How will this effect a non-primary parent who lives hundred or thousands of miles away from the primary residential parent? Again, we will not know for sure until Arizona's family courts interpret the new parenting time statutes, but it appears that the family court should award as much time as possible to the non-primary parent. This would mean that the days of splitting school breaks in half are over. For example, if the children live in Phoenix, Arizona with their mother, and their father lives in Texas, the family court will not simply make an order sending the children to Texas for every other spring break, every other fall break, four or five weeks every summer, and one-half of each Christmas break. Now, it looks like Arizona's family courts should craft visitation orders awarding the parent living away from the children with every spring and fall break and most or all of every summer. This presents the interesting question of whether the requirement to "maximize" the non-primary parent's time with the children requires the family court to award all of every Christmas break to the non-primary parent. Most families celebrate Christmas and this holiday can often be the most hotly contested holiday in family court. Or what about the traditional vacation every summer with the primary parent? Arizona's statutes require the family court to consider the children's best interests, and this is the primary guiding principal to family courts making parenting plans. The next question is therefore whether it is really in the children's best interest to spend every Christmas with one parent, or whether it is in the children's best interest to spend no vacation time with the primary residential parent. Time will tell, but I predict that Arizona's family courts will balance all considerations, including the requirement to maximize time for the non-primary parent, the best interests of the children, and the rights of both parents.

Therefore, I believe that courts will give the long-distance parent the bulk of the summer, spring, and fall breaks, but continue to split the winter/Christmas breaks. If you have this issue or any family law issue pending in Arizona's courts, I am ready and willing to consult with you, whether you are looking for an attorney or you are just seeking advice.

Published in Blog

On January 1, 2013, new custody and parenting time ("visitation") statutes take effect in Arizona. The new statutes will end use of the term "custody." Instead, "custody" will become "legal decision-making." As with custody, the Court may award one parent sole legal decision-making, or award both parents joint legal decision-making. Perhaps this is not much of a change, because, under the old statute, legal custody meant the legal right to make the major decisions (such as on health, education, and welfare) on behalf of the children. The factors in the legal decision-making statute have changed slightly, but they remain essentially the same. The potential for change is that the new language may mean that the parent with sole legal decision-making may dictate every day decisions, such as personal care, while the children are in the care of the other parent. This does not seem likely, but only time will tell as Arizona courts begin to make decisions interpreting the new statute. The key issue will be what courts consider to be "routine" decisions and what they consider to be "major" decisions. The sorts of decisions that may be subject to interpretation are whether a child receives a tattoo, what hair and clothing styles the child wears, whether a child is allowed to date, etc.

The potentially more significant changes are in the parenting time/visitation statutes. The old statute generally required that the non-custodial parent should have "frequent and meaningful" contact with the children. The new statutes include the words "frequent" and "meaningful," but also include the words "substantial" and "maximized." For example, the new statutes require that the court enter a parenting plan for the parents that "maximizes their respective parenting time." Does this mean that courts are required to first and most seriously consider an equal time parenting plan? Again, time will tell as courts make decisions interpreting the new statutes.

I predict that the new language will require courts to maximize the non-primary residential parent's parenting time, but not necessarily require an equal time parenting plan. The judges will still have much discretion, but the trend will be towards more equal or close-to-equal time. The legislature does not add words to statutes not intending to change the meaning. Because the legislature has added the word "maximize," for example, the legislature most likely meant it. Therefore, instead of granting every other weekend from Friday night to Sunday night and Wednesday evening to a parent, courts will award more substantial time. Examples may include every other weekend from Thursday night to Monday morning and every Wednesday overnight, or equal time. Again, time will tell.

All of the above is just a brief summary of the new statutes and my thoughts on them. If you find yourself in a divorce, paternity, custody, legal decision-making, parenting time, visitation, or any other family law situation, please do not hesitate to contact me to schedule a consultation. Thanks for reading my blog!

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Thomas A. Morton, P. L. L. C.
2916 N. 7th Avenue, Suite 100
Phoenix, Arizona 85013
(602) 595-6870

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