Thursday, 15 September 2016 10:23

Do's and Don'ts of Custody Cases in Arizona

Here are some things to avoid and some things to do when you have a custody/legal decision making/parenting time battle with the other parent of your children.
 
DON’T:
 
1. Send angry text messages or email to the other parent.  Anything you write that is inappropriate or makes you look violent, threatening, reckless, etc. will hurt your case if the judge sees it and you can bet that the other parent will show it to the judge.
 
2. Post anything dumb on social media.  The same goes for social media.  Also, portraying a party lifestyle, or posting pictures of guns, or posting about the new person you are dating can also hurt your case.  In fact, don’t use social media at all.
 
3. Say anything dumb.  You never know if someone is recording what you are saying.
 
4. Do anything dumb.  In my career, I have seen all kinds of dumb things that people get caught doing while they are fighting for their children.  Don’t commit crimes, drive drunk, do drugs, disappear, hide the children, make death threats, or do anything else that will hurt your case if the judge finds out about it.
 
5. Call the other parent incessantly or in the middle of the night.  Don’t make yourself look like a stalker, harasser, or abuser.
 
6. Put your children in the middle of the conflict with the other parent.  This almost always backfires.  More importantly, it is very bad for your children.
 
7. Allow the other parent to push you around.  This doesn’t mean that you should act aggressively or be unreasonable.  However, don’t move out of the house just because the other parent told you to move out.  This makes the other parent the de facto primary residential parent.  Don’t put up with the other parent withholding the children from you.  If the other parent withholds the children and you file with the court right away, you will get to see your children sooner.  If you put up with it for a long time, then you don’t look like your children are your priority when you do get around to filing with the court.
 
8. Be unreasonable.  Three quarters of getting what you want in Family Court is being reasonable.  Don’t withhold the children from the other parent unless you have a very good reason. Most often, a very good reason is drugs or severe abuse.  Don’t take away the car that the other parent is driving or remove his or her insurance.
 
9. Wait.  There is little advantage to filing first, but you should not put off filing with the court.  The sooner the court establishes your rights the better.  If the other parent is withholding the children or allowing very little contact with the children, the sooner yo file the sooner it will stop.
 
10. Give up.  You have a long-term goal.  It may seem like you are losing now, but you will not lose in the long run if you do the right things and don’t give up.
 
DO:
 
1. Assume the judge will see anything you write or post.  Only write and post things that you will not be afraid to explain to the judge.
 
2. Assume the judge will hear anything you say.  Only say things that you will not be afraid to explain to the judge.
 
3. Communicate in writing with the other parent as much as possible.  People can lie about what you said, but they can’t lie about what you wrote.
 
4. Remain civil with the other parent.  Not being civil hurts your case.  Being civil helps your case.  More importantly, this is what is best for your children.
 
5. Cooperate with the other parent to the extent possible.  Show the judge that you are the reasonable, cooperative parent.
 
6. Focus on the best interest of your children, not on what is best for you or how mad you are at the other parent.  This is the most important step in not screwing up your children during your legal dispute with the other parent.  It will also help your case.
 
7. Send civil, detailed emails to the other parent regarding decisions that the two of you must make for your children.  Show the judge that you can co-parent and make responsible decisions.  If the other parent responds in kind, you have begun a good co-parenting relationship with the other parent, which is good for your children.  If the other parent refuses to respond or responds inappropriately, you have created evidence favorable to your case.
 
8. File quickly.  Waiting usually hurts you.
 
9. Hire an attorney.  This may sound self-serving, but you don’t do this every day. An attorney does do this every day.  An attorney knows the law, knows the judges, knows the procedure, knows the ins and outs of custody battles, knows what is persuasive, and can look at your case with an unemotional eye.  Your children are worth it.
 
10. Try to settle.  The two people in the whole world in the best position to make decisions in the best interest of your children are you and the other parent.  If you and the other parent cannot make a decision on your own, a stranger who doesn’t know you, the other parent, or your children, but who happens to be a judge, will listen to two or three hours of evidence and make a decision for you.  It might be a decision you hate.
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I always try to settle my cases in family court and one of the best ways to do that is through mediation.  If the parties settle, they may not be completely happy with the outcome, but they controlled the outcome and avoided a decision from a judge, who may have given them an outcome that they hate.  As I tell my clients in legal decision making (custody) and parenting time (visitation) cases, the two people in the whole world in the best position to make a decision in the best interests of the children are the mother and father.  If the mother and father cannot come to a decision together, a stranger who happens to have been appointed to be a judge (and who does not know the mother, father and children) will listen to about three hours of evidence and impose a decision on them. 
 
Settlement is better.  One good way to work towards a settlement is to use a mediator.  A mediator is a neutral person who can give both sides an unbiased perspective and help them reach a settlement.  One way to mediate a case with children is a parenting conference.  The judge will appoint a parenting conference officer who will hold a conference with both parties for about two to three hours.  The conference officer will try to get the parties to work out a settlement regarding the children.  If the parties are unable to reach an agreement, the officer will make a limited written report to the judge about his or her observations during the conference and may make recommendations to the judge regarding the children.  The officer will report any partial agreements.  Each party must pay $300.00 for the parenting conference, but the judge may order that the parties can make payments.  Attorneys do not attend the parenting conference. The conference officer may interview the children.
 
Another way to mediate is for the judge to refer the parties to Alternative Dispute Resolution (“ADR”) for a settlement conference.  The parties’ attorneys attend this conference with their clients and the conference will include all issues before the family court.  The mediator in this case is an attorney appointed as a judge pro tempore with the authority to enter orders.  The parties do not pay for this conference.  If the parties reach a settlement the judge pro tem can enter the agreement on the record and approve it as a final order of the court.  If they do not reach an agreement, the judge pro tem simply reports to the judge that the parties did not reach an agreement.  A good judge pro tem can get a case settled that the parties did not think would settle.  ADR settlement conferences usually last about half a day.
 
Finally, the parties can go to private mediation.  Private mediation is expensive and the mediator does not have any authority because the court did not appoint the mediator.  The mediator generally follows the same process as the ADR judge pro tempore and may help the parties draft a settlement agreement if they reach an agreement.  Private mediation can be very helpful in settling a case when a parenting conference and ADR are not available. 
 
Anyone in family court in Maricopa County, Arizona should at least try to reach a settlement with the other party.  Mediation can be very helpful towards reaching a settlement.
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Many people seek answers to their family law questions on the internet.  My website has a lot of information and answers to peoples' questions.  I have also answered a lot of actual questions from people on Avvo.com.  A good example of this family law Q & A is my last answer:

 

I have had my son since he was three weeks old, and now that he is 1 year and 8 months his mother wants to share custody.

What can I do? She works 10 hour days and leaves him with whoever will watch him.

Thomas’s Answer

If there is no order and you were never married to the mother, she has the right to take your son at any time because children born out of wedlock in Arizona are in the sole care and custody of the mother until a court makes an order to the contrary. Therefore, if this is the case you should probably act quickly and file to establish paternity, legal decision making and parenting time.

If there is a court, order, you have to abide by the court order. Either one of you can file to modify the court order, assuming that it has been long enough since the court entered the order.

If you are married and there is not court order, then neither one of you has a superior right to the other.

 

To see all of my answers on Avvo.com, go here: https://www.avvo.com/attorneys/85013-az-thomas-morton-419854/answers.html

You can also browse answers from many other attorneys.

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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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Thomas A. Morton, P. L. L. C.
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