How do Arizona courts deal with legal decision making (custody) and parenting time (visitation) modification issues when one parent’s service in the United States armed forces necessitates the modification?  Generally, the courts may modify legal decision making and parenting time when to do so is in the children’s best interest.  The court must consider the terms of a military parent's family care plan when considering the child's best interest during that parent's military deployment.
If the children live primarily with the military parent, and that parent receives temporary duty, deployment, activation or mobilization orders that require that parent to move a substantial distance away, Arizona courts will not enter a final order modifying parental rights and parent-child contact until ninety days after the deployment ends, unless the military parent agrees to the modification.  This means that Arizona family courts will not modify a military parent’s rights and responsibilities to his or her children while that parent on deployment or temporary duty.
Furthermore, Arizona courts will not consider a military parent's absence caused by deployment or mobilization or the potential for future deployment or mobilization as the sole factor supporting modification.  Note, however, that Arizona courts may consider this as one factor, as long as it is not the only factor.
Arizona courts will, after a hearing, grant temporary orders modifying parental rights and responsibilities during the period of deployment or mobilization if the circumstances meet the following requirements: 1) the military parent has received orders that require him or her to temporarily leave; and 2) that parent’s deployment will have a material effect on his or her ability to parent the children.  For example, the court may enter temporary orders if a Marine Reservist received orders to Iraq for six months.  The court may also allow the military parent to present testimony and evidence electronically if the other side gets advance notice and the parent’s military service has a material effect on his or her ability to appear in court in person.  At the request of the military parent, for the duration of the military parent's absence, the court may delegate the military parent's parenting time, or a portion of that time, to a child's family member, including a step-parent, or to another person who is not the child's parent but who has a close and substantial relationship to the minor child, if the court determines that is in the child's best interest. The court will not allow the delegation of parenting time to a person who would be subject to limitations on parenting time, such as supervised parenting time.   All temporary modification orders will include a specific transition schedule to facilitate a return to the pre-deployment order within ten days after the deployment ends, taking into consideration the child's best interests parents do not come to an agreement on their own, which is for what all parents should strive.
Military parents should know their rights and responsibilities.  Parents who serve their country should not have a disadvantage in family court due to their service.
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I very often hear from people that they heard that a child can decide where they will live and with which parent when the child is 14 years old (or some other age).  This is not true.  My answer to the question “How old does my child need to be to decide with whom they live?” is always the same: 18 years old.
The wishes of the child are a factor in the Arizona legal decision making (custody) and parenting time statutes, but they are only one factor.  The older and more mature the child, the more weight the child’s wishes will carry with the judge.  However, they are still only one factor among many factors.  Also, the judge must explore the reasons for the child’s wishes.  The reasons may cause the child’s wishes to lose some or all weight.  For example, if a 17-year-old child tells a Family Court Advisor that he wants to live with his dad because his dad lets him smoke pot, the judge may not just ignore the child’s wishes, but give weight to the opposite of what a child wants.
Therefore, Arizona Family Courts will consider a child’s wishes, and will give more weight to the child’s wishes depending on the age and maturity of the child, but the child does not get to “decide” where the child lives until the child reaches the age of majority.
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 When does child support end in Arizona?  Child support in Arizona does not always end at the same time.  It depends on the particular facts of each case.  Generally, child support ends when a child is over the age of 18 years and has graduated from high school.
 Child support in Arizona generally ends when a child reaches 18 years of age.  If the child has not graduated from high school, child support will continue until the child graduates from high school, but only until the child reaches the age of 19 years as long as the child remains in high school.  In rare circumstances, the family court may order that child support continue past the age of majority, if the child has a severe mental or physical disability that renders the child unable to live independently and be self-supporting and the disability arose prior to the child reaching the age of majority.
 Example 1.  The child graduates from high school on May 31, 2016 and turns 18 on July 31, 2016.  Child support ends on July 31, 2016.
 Example 2.  The child turns 18 on December 31, 2015 and graduates from high school on May 31, 2016.  Child support ends on May 31, 2016.
 Example 3.  The child turns 18 on December 31, 2015 and never graduates from high school, but attends high school until after he turns 19.  Child support ends on December 31, 2016 (the child’s 19th birthday).
 Example 4.  The child turns 18 on December 31, 2015, has not graduated from high school and does not attend high school.  Child support ends on December 31, 2016.
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Arizona has no statute of limitation on collection of child support arrears, but it does have a statute of limitation on collecting spousal maintenance ("alimony") arrears.  The statute of limitation is three years past the termination date for the spousal maintenance obligation.

For example, if the court ordered Husband to pay Wife spousal maintenance through June, 2015, the deadline to file any petition to collect any arrears would be June 30, 2018.  This does not mean that the statute of limitation will bar collection of payments that are more than three years overdue.  For example, if the court ordered Husband to pay spousal maintenance through June, 2012, and Husband missed a payment in June, 2005, and Wife filed her petition to enforce spousal maintenance on June 1, 2013, then Wife’s petition is timely.

This means that people can wait to enforce spousal maintenance, but they cannot wait forever, like they can with child support.  However, as a practical matter, it does not make sense to wait to enforce either spousal maintenance or child support until the other party owes tens of thousands of dollars.  The larger the amount of arrears, the more difficult collecting the entire amount becomes.  A better course of action is to petition the court to enforce support orders before the amount of arrears grows too much, so that the other party begins to make regular, consistent payments.

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The Arizona Court of Appeals has recently issued some decisions regarding a few miscellaneous child support issues.  These cases include a parent attempting to recover an overpayment of child support, a court that modified child support after it modified parenting time even though neither party asked the court to modify child support, and a parent who worked part time at an hourly rate who had full-time income attributed to her at the same hourly rate as her part-time income.

In the first case, the children’s father overpaid child support because the mother started receiving SSI on behalf of one child.  Meanwhile, the oldest child emancipated.  The father waited one year to terminate child support.  The father argued that his child support obligation should end because one child had emancipated and the other child received SSI.  He also argued that the mother should pay back the overpayment caused by her receipt of SSI.  The court denied the request for reimbursement because the father had waited so long to terminate child support, it was within the court’s discretion to not order reimbursement, and Arizona law precludes a retroactive reimbursement (meaning that an order for reimbursement under these circumstances would amount to a retroactive child support modification, which Arizona law does not allow).

In the second case, the mother asked the court to modify joint legal decision making regarding school choice.  The father filed a counter-petition seeking equal parenting time.  Neither parent asked the court to modify child support.  The trial court granted the father’s request for equal parenting time and modified child support accordingly.  The mother appealed.  The Court of Appeals ruled that Arizona law requires the Family Court to enter a child support order pursuant to the Arizona Child Support Guidelines every time it enters a parenting time order.  Therefore, every time a court modifies parenting time, the court must also address child support, even when neither party has asked the court to do so.  This reminds me of a case I handled several years ago.  In that case, the opposing party had asked to modify parenting time to decrease my client’s time with the child.  Her petition backfired because the court ended up increasing my client’s parenting time.  The judge then proceeded to modify child support.  When the opposing party objected that she had not asked for a child support modification, the judge said that modification of parenting time and modification of child support go together, like peanut butter and jelly, ham and cheese, and chips and dip.

In the third case, the mother, whom the court had ordered to pay child support, lost her job due to "performance issues" in 2007 and remained unemployed until 2013.  In 2013, she began to work part-time for $11.60 per hour.  In calculating child support, the trial court used $11.60 per hour and 40 hours per week for the mother’s income.  The Court of Appeals ruled that the trial court had implicitly found that the mother had not provided any reasonable basis for not having full-time employment.  The only evidence that she had offered was her statements, which the trial court could accept or reject.

As you can see, not every issue in a child support matter is so easy to resolve.

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Although adultery can be emotionally devastating, it is usually not relevant to divorce in Arizona.  Arizona is a no-fault divorce state, which means couples can get a divorce without one of them being at fault.  It also means that the court will divide the couple’s property and debt, determine child custody and visitation, and determine child support and spousal maintenance without regard to marital misconduct.

Although adultery is not an issue in itself and is not directly relevant to the divorce, it may be relevant to certain narrow issues.  For example, if one spouse incurs tens of thousands of dollars in credit card debt having an affair, the other spouse can argue that the resulting debt is community waste which did not benefit the marital community and the court should declare the debt to be the other spouse’s separate debt.

Part of the benefit of hiring an attorney for your divorce is having someone who is not emotionally devastated or angry about your divorce and who can analyze the legal issues and give you good legal advice.

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Things to think about when contemplating divorce.

1.  Emotional costs. Money and time are not the only costs of a divorce. Sometimes the emotional costs are more than the monetary costs.  Emotional costs include changing relationships with your family and children.  Do you need a divorce in order to be well mentally and emotionally?

2. Strategy. Timing can be important.  Is your income is down, are your assets are devalued, or has your retirement lost value? If you are the main earner in the marriage, is it a good time to calculate spousal maintenance or divide your assets?  Is it possible that the court may require you to provide support based on an income that you no longer earn?

3.  Is your spouse contemplating a change? If your spouse is considering a major change, such as a move out of state, loss of a job, starting a new career, or some other disruption, you may want to file now before you and your spouse establish a new norm, such as your children living and going to school in another state.

4. Time.  Consider the time that a divorce will cost you.  Is it worth it?  How long will this bad economy last?  It has already lasted seven years.  How long until you retire?  How long until your children are grown?  How long will it take to establish your career or for your spouse to establish a career?

5. Your children and step-children. If you have children, sometimes being practical wins out over everything else.   How will your divorce affect your children?  How will co-parenting work logistically? Who will pay for what when it comes to the children’s expenses?  Who will be responsible for what?  How will you and the other parent behave so as to not permanently scar your children?  Have realistic plans and agreeable solutions to potential problems. Thinking things through in advance will take off some of the pressure during the divorce. Financial aspects of divorce sometimes seem less difficult if the child-related issues can be resolved quickly and amicably.

There may be any number of additional things to contemplate.  The answer is not the same for everyone.

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Wednesday, 14 October 2015 12:00

When Parents Want to Change a Child's Name

Sometimes parents who were never married to each other want to change their child’s last name.  The result is often a hyphenated name.  The legal standard for changing a child’s last name when the parents do not agree to change it rests on a determination of the child’s best interest.  In Arizona, there is very little legal authority to guide us on a disputed child name change.

The Arizona Court of Appeals recently issued a memorandum decision regarding a disputed child name change.  The decision is not published, which means that parents and attorneys cannot use it as legal authority in the future, but it contains a useful discussion on two aspects of the legalities of a disputed child name change.

The first aspect of the name change issue is the finality of a decision on a child’s name change, or whether the parties may bring more than one petition to change their child’s name.  The father in this case had twice brought unsuccessful petitions to change his child’s last name, and both times the mother opposed it.  Both times the court denied the petition for name change.  The father later brought another petition to change the child’s name.  This time the court granted the petition.  On appeal, the mother argued that the previous petitions for a change of name were denied and that the court could not revisit the issue.  The Court of Appeals ruled, "We disagree with Mother that once the court denied Father’s name-change request, it could not revisit the issue, as this is a decision controlled by the child’s best interests, which may change over time."

The second aspect of the name change issue is the factors that the court must examine in determining a child’s best interest regarding a name change.  The factors are 1) the child’s preference; 2) the effect of the proposed change on the preservation and development of the child’s relationship with each parent; 3) how long the child has had his or her current name; 4) the difficulties that the child may experience in having the current or proposed name; and 5) the motives of the parents and the possibility that a name change will cause insecurity or a lack of identity.  The Court of Appeals ruled that the trial court had properly considered these factors and affirmed the ruling.

You can review the Court of Appeals decision here:

If you have questions about a child’s name change or any other family law matter, please call Thomas A. Morton, PLLC for a consultation.

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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:

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.

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Friday, 18 September 2015 09:50

Grounds for Divorce in Arizona

The only grounds for divorce in Arizona for most marriages is that the marriage is irretrievably broken, and there is no reasonable prospect of reconciliation.  This essentially means that if one spouse wants a divorce, that spouse will get a divorce.  Spouses wishing to save their marriage have disputed that their marriage is irretrievably broken and that there is no reasonable prospect of reconciliation, but, if either spouse testifies that the grounds for an Arizona divorce exist, there is no judge who will not make the requisite finding.  The judge is not going to force someone to stay married who does not want to stay married.  It is always sufficient for one spouse to testify that the marriage is irretrievably broken and that there is no reasonable prospect of reconciliation.

None of the classic grounds for divorce, like adultery, cruelty, abandonment, and domestic violence, are grounds for divorce in Arizona.  Of course, any of the classic grounds for divorce may cause the marriage to be irretrievably broken with no reasonable prospect of reconciliation.   Because Arizona is a no-fault divorce state, the court will make no findings regarding fault.  The court will divide property and debt, make support orders, and make orders regarding any children without regard to marital misconduct.  Of course, issues like domestic violence or substance abuse may be relevant regarding the children’s best interest.

However, some people get a unique marriage license which says that the married couple has a covenant marriage.  This makes it a little more difficult to get a divorce in Arizona.  A covenant marriage requires a notarized statement that the couple has been counseled by clergy or a marriage counselor, including counseling regarding the limited options for divorce.  The grounds for the divorce of a covenant marriage are adultery; a felony conviction with a sentence of death or imprisonment; abandonment for one year (or expected to last one year) with a refusal to return; physical or sexual abuse of a spouse, child, or relative living in the home, or domestic violence as defined in the criminal portions of the Arizona Revised Statutes (it is a more broad definition than physical or sexual abuse); physical separation of two years (or expected to last two years); one year of separation following a decree of legal separation; habitual abuse of drugs or alcohol; or that both spouses agree to divorce.

Arizona is only one of three states that have covenant marriage.  The other two are Louisiana and Arkansas.

If you have questions regarding divorce or any area of family law, please contact Thomas Morton for a consultation.

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