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/
The distinction between sole and separate property and community property could have significant consequences in a divorce in Arizona. Arizona law defines community property as most property acquired by either spouse beginning the day they marry and ending the day one spouse serves the other spouse with a petition for dissolution of marriage. The significant exceptions are an inheritance to one spouse, a gift to one spouse, and pain and suffering damages from a personal injury claim. Arizona law defines sole and separate property as property acquired prior to the date of marriage, after the date of service in a divorce, gifts to one spouse, one spouse’s inheritance, and pain and suffering damages.
This sounds like a simple distinction, but sometimes the issue becomes more complicated. For example, if a spouse has money in a bank on the day of marriage, it is that spouse’s separate property. What if that spouse puts that money into a community property bank account after marriage? The law presumes co-mingled assets to be community property, but a spouse can trace the separate assets and, if that spouse can do so by clear and convincing evidence, the property will retain its sole and separate characterization.
Suppose a spouse owns a house prior to marriage, sells the house, and uses the proceeds to purchase a new house, taking title with the other spouse as community property. That spouse has made a gift to the marital community unless the other spouse has agreed in writing to the contrary. The law presumes property acquired during marriage to be community property.
Also, spouses can agree to change the characterization of property. They can agree to make sole and separate property into community property and vice versa.
Other issues as to the characterization of property include the growth of separate property due to community labor, the payment of debt secured by sole and separate property with community funds, and the vesting of property earned during the life of the marital community that perhaps compensates for future (post-divorce) employment (such as stock options).
Also, sole and separate property is not necessarily simply separate property for the family court to confirm to the spouse that owns it. It may influence several different issues. For example, sole and separate property that produces income will have an effect on the calculation of child support and will have an effect on spousal maintenance. It may also have an effect on the determination of an award of attorney’s fees to one spouse.
The characterization of sole and separate property and community property is an important issue in Arizona divorce and is not always as simple as it seems. If you are facing a divorce and have significant property, you should consult an experienced family law attorney.
In Arizona, parents have a legal obligation to provide basic support to their children. Typically, the parent in whose home the children reside most of the time receives child support from the other parent. Arizona courts typically base child support on a formula that includes each parent’s income, the time the children spend in each home, the number and age of children, the cost of medical/dental/vision insurance, and the cost of child care. The court will not scrutinize how parents spend the child support money.
So when does the obligation to pay child support to the other parent end? Keep in mind that child support is a separate issue and the obligation to pay it does not end because the other parent has violated another court order, such as a parenting time order. Typically, the obligation to pay child support ends when the child reaches the age of 18 years and has graduated from high school. For example, if a child turns 18 years old in December of his senior year of high school and graduates in May of the following year, the obligation to pay child support will end after May (the month the child graduates). For a further example, if a child graduates from high school in May and turns 18 years old the following September, the obligation to pay child support will end after September (the month the child turns 18). Does this mean that if a child never graduates from high school, the obligation to pay child support never ends? No. If a child does not graduate from high school the obligation to pay child support ends after the child turns 19 years old. Please also note that the final month of child support is for the entire month - the parent paying child support does not get a pro-rated discount when a child graduates or has a birthday in the middle of the month. For example, an 18-year-old child graduates from high school on May 21. The parent paying child support still has to pay the entire child support amount for the month of May. Finally, in rare cases Arizona courts will order a parent to pay child support beyond graduation from high school, the 18th birthday, and the 19th birthday. Arizona courts will do this in cases involving a child with a disability severe enough that the child will be unable to live independently and be self-supporting and if the child’s disability began before the age of majority.
What are some examples of when the child support obligation does not end? One example is when the other parent violates the parenting time order and withholds the children. Another example is when the Arizona juvenile court severs parental rights. Many people think they can avoid their child support obligation by getting the court to sever their parental rights. However, the obligation to pay child support does not end with severance of parental rights. It does, however, end with a subsequent adoption of the child. Also, child support does not automatically change when one child emancipates but other children are still under the age of 18 years. For example, a father pays $500 per month as child support for his two children. One child turns 18 years old and has graduated from high school. The child support amount does not automatically change to $250 per month. The father must still pay $500 per month until the court changes the child support order. This is because the number of children is only one factor among many that Arizona family courts use to calculate child support. In the example, the father must petition the court to reduce child support, but he should also consider other possible changes in circumstances, such as an increase in income or an increase in medical insurance premiums.
If you have a question about child support, or any other Arizona family law matter, please contact Thomas A. Morton, PLLC for a consultation.
Arizona law divides a married couple’s property into two groups: community property and separate property. Community property is the property that belongs to the husband’s and wife’s marital community. Simply put, it belongs to both the husband and the wife. Separate property is property that belongs to one spouse only.
Arizona law presumes all property acquired by either spouse or both spouses from the date of marriage until the date that one spouse serves the other spouse with a petition for divorce or legal separation to be community property (except for property that was a gift to one spouse only, an inheritance by one spouse only, and most of a personal injury settlement or award). Upon divorce or legal separation, the court will equitably divide the community property. Usually, "equitably" will mean substantially equally. Under limited circumstances, when the normal equities of marriage have not occurred, the court may divide community property substantially unevenly. One example is if the spouses separate and live apart for several years, one spouse becomes a teacher during the separation, and then the parties divorce. In that case, the court may divide the teacher spouse’s retirement unevenly. The example from the Arizona Supreme Court is when spouses marry, the next day they buy a house together with one spouse’s separate property (money he had prior to the marriage), and two weeks later they file for divorce.
Also, property can change its characterization over time from separate property to community property or vice versa. Courts call this transmutation. This can occur by gift, such as when the spouses decide to refinance one spouse’s separate property house and sign a new deed accepting the property as community property. It can also occur by commingling, such as when one spouse deposits separate funds into a joint account and, over time, enough transactions occur to make it impossible to trace the separate funds. Community property can also become one spouse’s separate property, but this is much more difficult to prove and the spouse making this claim has the burden to prove it by a higher standard of proof than normal. When determining whether property has transmuted, Arizona courts use the inception of title rule, which says that property retains its characterization as separate or community unless the spouses undertake some affirmative action that changes the characterization, such as signing a new deed or comingling as discussed above.
Characterizing property as community or separate may seem straight forward (and usually is straight forward), but there are some potential complexities. One example is when the marital community expends funds or labor on improving or paying secured debt on one spouse’s separate property. The marital community may have a lien for the increased value and, in the case of community payments on debt secured by separate property, for the community funds spent to pay the secured debt. However, when a spouse spends his or her separate funds to improve community property, the law presumes the expenditure to be a gift to the marital community. A spouse must prove an express agreement to the contrary to overcome this presumption and must do so by a higher standard of proof.
Another complexity is the theory of quasi community property. When spouses marry in a non-community property state and move to Arizona, upon divorce Arizona courts will treat the spouses’ property acquired in the previous state of residence as community property if the property would have been community property had the spouses acquired it in Arizona. The quasi community property rule also applies when a creditor is attempting to collect a debt of one spouse incurred in another state if the debt would be a community debt if the spouse incurred it in Arizona. This means that if one spouse incurs a debt in a non-community property state and the couple then moves to Arizona, a creditor can collect against community property (such as either spouse’s employment income) if the debt would have been a community debt had they incurred the debt in Arizona.
This is just a basic overview of Arizona’s community property laws. It may answer many questions, but is by no means comprehensive. For example, this article does not address the characterization of employee stock options. You should seek an experienced family law attorney’s advice when determining issues like community property. Thomas A. Morton is an experienced family law attorney in Phoenix, Arizona who you may contact for a consultation on this subject.
Parties to a family law dispute and their lawyers often struggle with the quesiton of what is child support. For example, I once had to argue with a lawyer who tried to convince the court that meals out for the entire family (which included his client, his client's new spouse, his client's step-children, and the parties' other children) were support for the parties' disabled child and my client should therefore pay for them. Naturally, my client prevailed. The Arizona Court of Appeals recently issued a decision on a similar issue. In that case, the parties had previously divorced and had one child. Mother wanted to travel to Japan with the child to visit her family. Father objected that Mother was likely to not return from Japan with the child, Japanese courts would not enforce an order form an Arizona court, and Japan would not return the child because Japan is not a signatory to the parental kidnapping provisions of The Hague Convention. The trial court found Father's concerns credible and ordered that Mother not take the child to Japan. In attempting to fashion a creative remedy, the trial court ordered Father to purchase six round-trip airline tickets every three years so that Mother's family could visit the child in Arizona. Father appealed, arguing that the trial court did not have authority to make that order. Mother argued that the trial court had that authority under Arizona child support laws. The appellate court, in reversing the trial court's order regarding the travel expenses, held the following extended discussion on what expenses are support expenses.
The family court has only the authority provided by statute. Weaver v. Weaver, 131 Ariz. 586, 587, 643 P.2d 499, 500 (1982). Under A.R.S. § 25-320, the court may order a parent "to pay an amount reasonable and necessary for support of the child, without regard to marital misconduct." A.R.S. § 25-320(A) (Supp 2013).1 "Support" means "the provision of maintenance or subsistence." A.R.S. §§ 25-320(R)(5) (Supp. 2013), -500(9) (Supp. 2013). "Maintenance" has been defined as:
Sustenance; support; assistance; aid. The furnishing by one person to another, for his or her support, of the means of living, or food, clothing, shelter, etc., particularly where the legal relation of the parties is such that one is bound to support the other, . . .
Black’s Law Dictionary 953 (6th ed. 1990). It has elsewhere been defined as "means of support or subsistence; livelihood." Random House Webster’s College Dictionary 799 (2nd ed. 1999). "Subsistence" has been defined as "Support. Means of support, provisions, or that which procures provisions or livelihood," Black’s Law Dictionary 1428 (6th ed. 1990), and "the means of supporting life" or "the source from which food and other items necessary to exist are obtained," Random House Webster’s College Dictionary 1302 (2nd ed. 1999). In addition, we have previously interpreted the statutory definition of "support" as requiring a parent "to provide sufficient support to maintain a child at a reasonable subsistence level with food, shelter, clothing, medical care and the like." State v. Buhman, 181 Ariz. 52, 55, 887 P.2d 582, 85 (App. 1994) (interpreting former A.R.S. § 12-2451 (1998), the pertinent parts of which are now found at A.R.S. § 25-500 (Supp. 2013) and § 25-501 (Supp. 2013)).
Requiring Father to pay airfare for unspecified relatives of Mother to visit the Child every three years does not fall within the statutory definition of "support." The court made no determination that visits from Mother’s relatives were necessary for the Child’s welfare or in any way related to maintenance or subsistence.2 The court treated Mother’s request for the tickets as a remedy for restricting the Child’s travel. The travel restrictions imposed by the court, however, were based on what the court apparently found to be legitimate concerns that Mother would abscond with the Child to Japan, in which event Japan was unlikely to enforce the court’s orders. The court offered no reasoning as to its legal basis for the order to pay for the tickets or as to why Father should be obligated to bear the expense.
Mother also relies on the Guidelines, which provide that the court "may allocate travel expenses of the child associated with parenting time in cases where one-way travel exceeds 100 miles." Guidelines § 18. This provision does not support Mother’s position, however, because the travel expenses of Mother’s extended family are not "associated with parenting time." The plain language of the statute does not authorize the court to allocated expenses for travel for other purposes.
We conclude that neither A.R.S. § 25-320 nor the Guidelines authorize the family court, under these circumstances, to order Father to pay for Mother’s family’s round-trip tickets to visit the Child. Mother has cited no other authority in support of the ruling. We therefore vacate that portion of the family court’s order requiring Father to purchase the tickets.
Hopefully, this gives some insight into what travel expenses a trial court may order a parent to pay under Arizona's child support laws. However, this decision is not a published decision, which means that it is not legal authority and only controls that one case. If you have a question about child support, travel expenses, or other child-related expenses and child support, Thomas A. Morton can help you answer it.
The Arizona spousal maintenance statute sets forth a two-part determination regarding spousal maintenance. This is the statute in its entirety:
Arizona Revised Statute § 25-319
A. In a proceeding for dissolution of marriage or legal separation, or a proceeding for maintenance following dissolution of the marriage by a court that lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order for either spouse for any of the following reasons if it finds that the spouse seeking maintenance:
1. Lacks sufficient property, including property apportioned to the spouse, to provide for that spouse's reasonable needs.
2. Is unable to be self-sufficient through appropriate employment or is the custodian of a child whose age or condition is such that the custodian should not be required to seek employment outside the home or lacks earning ability in the labor market adequate to be self-sufficient.
3. Contributed to the educational opportunities of the other spouse.
4. Had a marriage of long duration and is of an age that may preclude the possibility of gaining employment adequate to be self-sufficient.
B. The maintenance order shall be in an amount and for a period of time as the court deems just, without regard to marital misconduct, and after considering all relevant factors, including:
1. The standard of living established during the marriage.
2. The duration of the marriage.
3. The age, employment history, earning ability and physical and emotional condition of the spouse seeking maintenance.
4. The ability of the spouse from whom maintenance is sought to meet that spouse's needs while meeting those of the spouse seeking maintenance.
5. The comparative financial resources of the spouses, including their comparative earning abilities in the labor market.
6. The contribution of the spouse seeking maintenance to the earning ability of the other spouse.
7. The extent to which the spouse seeking maintenance has reduced that spouse's income or career opportunities for the benefit of the other spouse.
8. The ability of both parties after the dissolution to contribute to the future educational costs of their mutual children.
9. The financial resources of the party seeking maintenance, including marital property apportioned to that spouse, and that spouse's ability to meet that spouse's own needs independently.
10. The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment and whether such education or training is readily available.
11. Excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common.
12. The cost for the spouse who is seeking maintenance to obtain health insurance and the reduction in the cost of health insurance for the spouse from whom maintenance is sought if the spouse from whom maintenance is sought is able to convert family health insurance to employee health insurance after the marriage is dissolved.
13. All actual damages and judgments from conduct that results in criminal conviction of either spouse in which the other spouse or child was the victim.
C. If both parties agree, the maintenance order and a decree of dissolution of marriage or of legal separation may state that its maintenance terms shall not be modified.
D. Except as provided in subsection C of this section or section 25-317, subsection G, the court shall maintain continuing jurisdiction over the issue of maintenance for the period of time maintenance is awarded.
As you can see, Subsection A is the first part of analysis and addresses the threshold question: is a particular spouse entitled to an award of spousal maintenance. If the answer is no, the analysis ends. If the answer is yes, the court proceeds to the second part of the analysis set forth in Subsection B to address the questions of the monthly amount of spousal maintenance and the duration of spousal maintenance.
Note also that Subsection C says that the parties may agree that the spousal maintenance award may not be modified. Unless the parties make this agreement, spousal maintenance is subject to modification until the duration of the award ends. The Arizona Supreme Court has ruled that this section actually means what it says - if the parties agree that the award is not modifiable, it is not modifiable for any reason with no exceptions.
A couple of the ways that judges determine the monthly amount of spousal maintenance is that some use the guidelines authored several years ago by the Maricopa County Superior Court. The guidelines are not the law. The Superior Court created them after studying many spousal maintenance cases as a way for litigants and attorneys to attempt to predict the likely award if they go to trial. One judge used the guidelines to determine a spousal maintenance award and the Court of Appeals ruled that trial courts may not do that - they must actually use the factors in Subsection B. Later, some judges used the guidelines and said in their orders that they considered the factors in Subsection B. This time, the Court of Appeals ruled that this is sufficient. The guidelines are the difference in net monthly incomes of the parties times .015 times the number of years of marriage. For example, if Husband’s net monthly income is $5,000, Wife’s net monthly income is $2,000, and the parties have been married for 20 years, the calculation is ($5,000 - $2,000) x .015 x 20. In this case, the guideline amount for monthly spousal maintenance is $900.
The other way to determine the monthly amount of spousal maintenance is to determine the spouse’s monthly reasonable needs, subtract his or her monthly income (or what she is capable of earning), determine the paying spouse’s monthly income (or what he or she is capable of earning), subtract his or her reasonable needs, and see if the money left over is enough to make up the other spouse’s monthly deficit.
If you have a spousal maintenance issue or have questions about spousal maintenance, contact Thomas A. Morton. I offer a consultation of about one hour for a flat fee that is substantially less than my hourly rate. Thomas A. Morton is a Phoenix, Arizona divorce and family law attorney.
Over the years I have seen many ways for people to ruin their divorce case. I know that I have not come close to seeing them all, but I have seen several ways that people hurt themselves in their divorce. Some ways are more common than others. The following list is some of the more common ways that people hurt themselves in family court.
Lie to your lawyer or withhold information from your lawyer. Your lawyer’s advice, analysis, and strategy depends on what you tell him. If, for example, he proceeds under the assumption that you have never used illegal drugs because you lied to him about it, the family court consequences of your drug use will probably go from bad to worse. If you get caught lying about anything, the judge will never believe anything else you say. Credibility is a very important factor in any contested family law case. Furthermore, the judge will most likely not be upset with your lawyer, he or she will be upset with you.
Miss court hearings. This actually happens once in a while. People usually do this because they assume the court will continue the hearing or because they do not think that they have to attend. Sometimes, people just do not respect our legal system. Whatever the reason, the consequences can be disastrous. Never assume that the court will postpone a hearing or that you do not have to attend a hearing and always have enough respect to at least show up.
Don't cooperate with your lawyer. Your lawyer asks for things for a reason. Missing deadlines can have bad consequences, such as the court refusing to review your evidence. Your failure to provide information to your lawyer may result in his inability to present a strong case on your behalf. Some people think that when they hire a lawyer they no longer have to do anything about their case. Nothing could be further from the truth.
Don’t hire a lawyer. Some people think that they don’t need a lawyer and then cannot believe that they got a bad result. Next, they seek a lawyer to "fix" the result. Usually, it is too late to do much (if anything). Just as often, an experienced lawyer could have prevented the bad result. Lawyers are familiar with the individual judges, know how to get things done in family court, know the potential pitfalls, have the knowledge to think things all the way through, and can give advice and make decisions that they did not base on the emotions that their clients feel during a divorce.
Ignore your lawyer's advice or don’t take it. Why would someone hire a lawyer (and pay them a lot of money) and then ignore the advice they that they bought? An experienced lawyer gives good advice because he or she has built that advice and knowledge with practical experience. Sometimes people opt to listen to friends or family instead of their lawyer. Sometimes, this badly hurts their case. Sometimes, ignoring your lawyer’s advice bears no ill consequences, but this does not mean that the lawyer was wrong. It really means that they took a risk and got lucky. However, as the old saying goes, if you keep rolling the dice sooner or later they’re going to come up snake eyes.
Alienate your lawyer. Ways to alienate your lawyer include not paying your bill, abusing your lawyer, abusing your lawyer’s staff (this is the one thing that I never tolerate from a client), lie to your lawyer, threatening your lawyer, and doing many of the other things on this list. Alienating your lawyer will usually not result in anything bad for you. No matter how much a lawyer dislikes the client, most lawyers will still do a good, professional job for the client. However, lawyers are human and you can never tell how a lawyer’s reaction will affect the lawyer’s work. Also, if you alienate your lawyer enough, for example by persistently refusing to pay for services or continually abusing staff, the lawyer may withdraw from representation.
Be unreasonable. Three-quarters of getting what you want in family court is being reasonable. Being unreasonable damages your credibility, angers the judge, and subjects you to monetary sanctions. Focusing on your anger at the other parent, for example, will tell the judge that your focus is not your children’s best interest. It will also badly damage your credibility. Also, you will obviously not get what you want.
Look for the cheapest lawyer. You do not always get what you pay for. Personally, I think that some of the high-priced lawyers in the Phoenix area are not worth half what they charge their clients. However, there is still something to this old saying. If you hire a lawyer who accepts a ridiculously low fee, that lawyer will probably do the minimal amount of work to avoid malpractice.
If you avoid these pitfalls and use common sense, you have a much better chance of success in family court.
The Arizona Court of Appeals recently addressed the question as to whether the issuance of an order of protection requires actual physical violence. In its recent decision in Michaelson v. Garr, the Arizona Court of Appeals stated that actual physical violence is not necessary for a court to issue an order of protection.
Michaelson and Garr broke up in September, 2012. Michaelson received an order of protection in October, 2012. Garr later requested a hearing on the order of protection. At the hearing, Michaelson never claimed that Garr committed any acts of physical domestic violence. She testified that Garr was harassing her. On September 26, 2012, he sent her over 60 unwanted text messages, and on October 4, 2012, he called her employer, identified himself as an attorney, and gained access to her work schedule. He then sent her a text message stating that he "had all the information he needed" to know when she was at work and when she was at home. Michaelson also testified that she refused to accept flowers that Garr had sent her at work on October 15, 2012, and that Garr had sent her a text message stating that God brought them together and only God could separate them. After considering the testimony and evidence, the trial court kept the order of protection in place. Garr appealed.
On appeal, Garr argued that there was no specific allegation of abuse. The Court of Appeals, in affirming the trial court’s decision, noted that a court must keep an order of protection in place if the plaintiff proves by a preponderance of the evidence (i.e., more likely than not) that "there is reasonable cause to believe . . . [that] [t]he defendant may commit an act of domestic violence." Arizona law broadly defines domestic violence in the context of a romantic relationship and includes a wide array of harassment by "verbal, electronic, mechanical, telegraphic, telephonic, or written" communication. Therefore, actual physical domestic violence is not a requirement to issue an order of protection.
Therefore, the belief that someone has to actually commit a violent act in order to be subject to an order of protection is incorrect. Harassment alone is enough to issue an order of protection.
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.
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.
Thomas A. Morton, P. L. L. C.
2916 N. 7th Avenue, Suite 100
Phoenix, Arizona 85013
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All information on this website is not, and is not intended to be, legal advice. You should consult an attorney for advice regarding your individual situation, as each case is different and contains different facts. I invite you to contact me and welcome your calls, letters and e-mail. Contacting me does not create an attorney-client relationship. Please do not send any confidential information until you establish an attorney-client relationship with me.
Attorney Thomas A. Morton is located in Phoenix, Arizona, and serves clients throughout Maricopa County, including Tempe, Mesa, Scottsdale, Glendale, Peoria, Gilbert, Chandler, Goodyear, Surprise, Avondale, Cave Creek, Carefree, New River, Anthem, Black Canyon City, Sun City, Laveen, Buckeye, Goodyear, Litchfield Park, Tolleson, Youngtown, Queen Creek, Guadalupe, Fountain Hills, Paradise Valley, Wickenberg, Apache Junction, and El Mirage.