Unfortunately, many people lie to the court during legal decision making (custody) and parenting time cases. Often, the person who is acting badly is the person lying to the court about the other parent. Too often, these people get away with it because the judge does not know who to believe.
One American soldier just solved this problem with his GoPro camera. His wife is accusing him of domestic violence while she is committing domestic violence against him. He hid his camera on his body and captured her not only committing domestic violence against him, but threatening to falsely accuse him of committing domestic violence against her. The story is here: http://www.wtsp.com/story/news/2015/09/20/soldier-uses-gopro-to-prove-wifes-domestic-abuse/72545676/
People often ask if it is legal to record telephone conversations and face-to-face meetings. People often tell me that they want to record the other party because the other party lies about what happens or what people say. In Arizona, it is legal to record a conversation of which you are a part. Therefore, you can legally record your phone conversations and encounters that you have with other people. You may not legally record the conversations of other people without their permission.
The story about the soldier who solved the he-said-she-said problem shows how to effectively use recording devices when the other parent lies to the court.
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/
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.