Friday, 06 December 2013 13:53

Children Flying Alone

Children commonly visit parents and family members in other states, especially around Christmas and Thanksgiving. Sometimes the children fly to other states. However, many families just cannot afford for a parent to accompany the child on the flight.

So, what are the laws and rules regarding when children can fly alone?

Every airline has its own rules about allowing children to fly by themselves. Each airline has its own age restrictions. No major airline allows children less than five years of age to fly alone. Between the ages of five and seven years, many airlines require enrollment in a special unaccompanied minors program and prohibit travel on anything but direct flights. Children aged eight to 14 years are usually unrestricted, but must still enroll in the unaccompanied minors program for that airline. Most airlines allow children over the age of 14 years to fly without restriction or enrollment in an unaccompanied minors program.

Most airlines will require special bookings and reservations to allow a child to fly alone. A number of state and federal laws require adult supervision of any minor, meaning the airline will be required to take responsibility for any children flying with them. This is why most airlines have special unaccompanied minors programs designed in part to defray the additional personnel costs to monitor children and to ensure that they are not illegally transported across state lines or international borders. These programs usually cost about $100 to join.

To book a flight for a child to fly alone also generally requires an in-person reservation or telephone booking (i.e., online booking is usually not available). Also, the person booking the flight may not book a flight that will require the child to stay overnight in a hotel if the airline cancels the flight. The only available flights are usually morning and afternoon flights; no red-eyes and no flights that are the final departure for that destination from that airport on any given day.

An airline that accepts responsibility for a child may become liable should the minor sustain an injury, go missing, or die. Therefore, airlines may ask parents to take a number of additional precautions in the preparation of the child to travel than a normal passenger would undertake. Airlines do this to ensure both the safety and comfort of the child as well as to prevent as much risk of liability on the part of the airline as possible. Requirements may include making sure the child knows his or her full name, address, and telephone number, as well as the name and telephone number of the adult he or she is supposed to meet at the final destination. The airline will also require you to provide at least one and probably several means of contacting you should there be a delay or other incident. The airline will also require the adult that receives the child at the destination to provide a current photo identification. The name on the identification must match the name listed on any unaccompanied minor paperwork the parent or guardian filled out at the time of booking and/or check-in.

For more information about children flying alone, you can visit the website of your airline of choice. You may also find additional resources through the Federal Aviation Administration or by contacting your local airport.

Here are some links to some major airlines unaccompanied minors programs:

Published in Blog
Saturday, 23 November 2013 16:21

Spousal Maintenance and Alimony Basics

Most divorcing couples in Arizona only have a vague understanding about spousal maintenance (also known as alimony). Most people think that spousal maintenance means that the former husband must continue to support the former wife indefinitely. That is the result sometimes, but there are many different results and variations in a spousal maintenance case.

The State of Arizona has enacted specific statutes to guide judges and divorcing couples regarding spousal maintenance.

Arizona’s Spousal Maintenance Statutes

The court must first determine whether a spouse seeking spousal maintenance is entitled to an award of spousal maintenance. In making this determination, the court will examine whether the spouse seeking spousal maintenance meets the following factors:

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.

Generally, healthy spouses who have a good job or career, are young, or who had a marriage of less than five years will not get an award of spousal maintenance. However, there are exceptions, such as a spouse leaving a marriage of less than five years who did not work at all during the marriage, or a spouse with a good, but modest income leaving a marriage with a high standard of living because the other spouse developed a much higher income during the marriage.

After determining that a spouse is entitled to spousal maintenance, the court must examine the following factors to determine the monthly amount of spousal maintenance, and the duration of spousal maintenance. 

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.

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. This means that if the parties agree, spousal maintenance will not be modified for any reason. The Arizona Supreme Court has ruled that this actually means for any reason, even if the spouse paying spousal maintenance becomes completely disabled. 

The court will maintain continuing jurisdiction over the issue of maintenance for the period of time maintenance is awarded.

Spousal Maintenance Guidelines

Several years ago, the Superior Court in Maricopa County, Arizona issued spousal maintenance guidelines. The guidelines were never substantive law that courts must follow, but were an attempt to give people a formula that they could use to try to predict a judge’s ruling regarding the amount and duration of spousal maintenance. The Superior Court formulated the guidelines after studying spousal maintenance awards on Maricopa County of a period of several years.

The formula for monthly amount is the difference between the net monthly incomes of the parties multiplied by .015, multiplied by the number of years of the marriage, or

(Higher Income - Lower Income) x .015 x Years of Marriage = monthly amount

For example, according to the guidelines, in a case where the husband’s net monthly income is $7,000, the wife’s net monthly income is $2,000, and marriage lasted ten years, the husband could expect to pay spousal maintenance in the monthly amount of $750 ((7,000 - 2,000) x .015 x 10 = 750).

What divorcing couples must realize, however, is that the guidelines are not the law. (In fact, I have dealt with attorneys who I wished had understood this). The Arizona Court of Appeals has ruled that judges must make rulings based upon the statutory factors, not the guidelines.

Additional Alimony Advice

The first step to receiving spousal maintenance/alimony is to have an experienced divorce attorney negotiate an agreement for it. However, if negotiations fail, an experienced attorney will make your case to the court.Men generally do not realize they may be eligible for spousal maintenance.

Many people believe that only women get spousal maintenance, but the law is gender-neutral. I will admit that many judges are much more harsh with spousal maintenance cases brought by men, but this is not the law and why we have a court of appeals.  

Arizona is a no-fault divorce state. Courts do not consider marital misconduct in a spousal maintenance case.

Also, the federal and state governments tax spousal maintenance to the receiving spouse. In other words, a spouse paying spousal maintenance deducts the payments from his or her income on his or her tax return and the spouse receiving spousal maintenance must declare the payments as income on his or her tax returns.

Finally, a spousal maintenance award is not always set at the same amount for the entire duration. For example, a court may award $1,000 per month for 24 months, $750 per month for 24 months thereafter, $500 per month for 12 months thereafter, and $250 per month for 12 months thereafter.

If you have spousal maintenance/alimony questions, contact Thomas A. Morton in Phoenix, Arizona.

 

 

Published in Blog
Saturday, 16 November 2013 20:16

What Happens to Real Estate in a Divorce?

What happens to jointly-held property, specifically real estate, when a married couple divorces in Arizona? It depends on what the divorce decree says, but first, let’s look at different ways couples hold joint property. They can hold property in joint tenancy, which means that each spouse holds an undivided one-half interest in the property and that, if one spouse dies, the other spouse owns the property: the deceased spouse cannot leave the property to someone else in a will. A married couple can also hold property as community property, which means that the marital community owns the property and if one spouse dies, the other spouse owns the property, like in a joint tenancy. Finally, a married couple can own the property as a tenants in common. The key difference between a tenancy in common and the previous two ways to hold property with a spouse is that when a spouse dies, that spouse’s portion of the property does not belong to the surviving spouse. The deceased spouse can leave the property to someone else in his or her will.

In Arizona, when a married couple divorces, the divorce decree determines what happens to the property. The decree will usually say who keeps the real estate property. A divorce decree can be recorded and is effective to transfer title. Therefore, if a decree assigns property to one spouse and the two former spouses never change the deed, the property still belongs to the spouse listed in the decree. Still, the former spouses should execute a deed in order to avoid a mess when one of them dies.

Now, the interesting question is what happens to jointly-held property that the divorce decree omits? In Arizona, property held in joint tenancy or as community property that the divorce decree omits becomes by operation of law (i.e., "automatically") property held by tenants in common. Therefore, if a couple owning property in joint tenancy or as community property gets a divorce and the decree omits the property, one former spouse does not own the other spouse’s half of the property if the other spouse dies. The deceased spouse’s portion of the property will pass according to the deceased spouse’s will or, if the deceased spouse has no will, to his or her heirs at law (surviving spouse; if no surviving spouse, to surviving children and/or grandchildren, great-grandchildren, etc.; if no children, etc., to surviving parents; etc.).

If you get a divorce, make sure the terms of your decree divide all real estate. The State of Arizona has seen some messy situations caused by the failure to divide real property in a divorce decree.

 

 

Published in Blog
Friday, 18 October 2013 11:13

The Pros and Cons of Uncontested Divorce

Ending your marriage is never simple. However, you and your spouse can make the process more simple by remaining civil and working together to settle the issues equitably. If the spouses can work together to settle issues such as legal decision making, parenting time, child support, spousal maintenance, division of property, and division of debt, they can make their divorce a much less difficult process. This may be very difficult for many couples, but it is often well worth the effort.

The advantages of an uncontested divorce are many. First, the process is much faster than going to trial. People going through the divorce process usually want to be divorced as soon as possible. If they settle rather than go to trial, the process is always over more quickly, which leads to the second advantage: less aggravation. Divorce is stressful, aggravating, heart-breaking, and often infuriating. It is usually worse the longer the process takes and especially if you go to trial. When you have an uncontested divorce, or if you settle prior to trial, you avoid additional stress, aggravation, anger, and sorrow. Similarly, you have less conflict with the other spouse. This can be enormously helpful in the future if you have children together.

Another advantage to an uncontested divorce or settlement is that it is less expensive. Everyone has better things to do with their money than pay their divorce attorneys. The less work the attorney does, they less you pay. Going to trial takes a huge amount of an attorney’s time, so if you can negotiate an outcome with which you can live, you will save money. I tell people when they have a chance to agree to a reasonable settlement to spend their money on their kids, not on their attorney. An uncontested divorce is also often more dignified. You will not go to court to fight while your children watch and you will not testify against your spouse. Many people are embarrassed at trial by what they say about their spouses and by what their spouse says about them.

Finally, the most important advantage to an uncontested divorce is that you control the outcome. If the two spouses can agree to something reasonable, they make the decision regarding their lives instead of a judge making the decision for them. Besides, an agreement that you can live with is always better than a judge’s decision that you think is awful. This is even more important if you have children with the other spouse. The two people who are the most qualified to make a decision regarding your children’s best interests are you and the other parent. If you and the other parent cannot make an agreement, a judge (who is, by the way, a stranger in a black robe) who has never met your children will make the decision. The judge will do his or her best, but the judge does not know you or your children and will make the decision after listening to approximately three hours of evidence and reviewing a few exhibits.

The advantages of settlement apply to every divorce, but the disadvantages are limited to certain situations. The most obvious disadvantage to an uncontested divorce or settlement is when the other spouse will not be reasonable. Obviously, you should not agree for the sake of making an agreement when the other party is insisting on a settlement that is unreasonable and will not budge from that position. Examples include insisting that you rarely see your children (without a good reason like abuse or drug use), insisting on keeping all or most of the property, insisting on an exorbitant amount of support or insisting on paying no support when it is clearly due, and insisting on including issues that are not issues in a divorce, such as who is supposedly at fault for the divorce. However, if both parties can be reasonable, this is not a disadvantage.

Another disadvantage to uncontested divorce or settlement is if one party intimidates the other party. In my opinion, everyone needs a lawyer in a divorce, but people who are intimidated by their spouse REALLY need a lawyer. People who are intimidated by their spouse should be hesitant to settle prior to litigation because they almost always end up capitulating to unreasonable demands because they are intimidated. This is usually the case with abused spouses and spouses who have been controlled and pushed around for a long time by the other spouse. These spouses usually end up agreeing to a ridiculous settlement.

Finally, there is no advantage, or even much possibility, of an uncontested divorce or settlement if the parties cannot cooperate. If either spouse focuses of antagonism towards the other spouse, or if the parties simply cannot work together for any reason, they will not be able to cooperate sufficiently to reach a reasonable resolution of their divorce.

As you can see, the advantages of an uncontested divorce or a settlement usually far outweigh the disadvantages. I believe that you should still have a lawyer in an uncontested divorce so that you can ensure that everything is correct. Also, it helps a lot to have someone who is not emotionally involved in your divorce and who has experience in the process advise you and negotiate on your behalf.

If you need help with an uncontested divorce or a divorce settlement, please contact me. I would love to help you.

 

 

Published in Blog

NOTE: EVERYTHING WRITTEN BELOW IS FOR INFORMATIONAL PURPOSES ONLY. IT IS NOT LEGAL ADVICE AND DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. READING A BLOG IS NO SUBSTITUTE FOR CONSULTING WITH AN ATTORNEY.

You are divorced and have children with your former spouse, or you were never married and have children with a former significant other. One day, the other parent announces that he or she will be moving your children to another state, making it much more difficult or impossible to see your children as often as you do now. What should you do?

Although the answer depends on your legal situation, each answer begins the same way: talk to the other parent. Some parents communicate better than others, but it does not hurt to try no matter how hostile the other parent behaves. If you emphasize not only what the move will mean to you but what it will mean to the children, you may make some headway. If the children are older, it may be easier to convince the other party to not attempt to move the children because older children often do not wish to leave their friends, school, community, and routine. You should also emphasize that children need regular contact with both parents. If you can get the other parent to realize that they would not only be taking the children from you, but taking you from the children, they may reconsider the move.

If you cannot convince the other parent to not move (my cynical side says WHEN you cannot convince the other parent), your next move depends on your situation. If you are the father, have never been married to the mother, and have never sought a court order regarding the children, you must act immediately. Children born out of wedlock in Arizona are in the sole custody and care of the mother - the father has no legal rights to the children. You should immediately file an action to establish paternity, legal decision making (custody), parenting time, and child support. You should also file a motion for temporary orders seeking an order for not only contact with the children, but also an order that the mother not move the children pending the outcome of the paternity case.

If you are the mother, have never been married to the father, and have no court orders regarding the children, the children are in your sole custody and care: the father cannot move the children without your consent. You should seek a court order anyway in order to establish paternity, a parenting plan, and child support, but your situation is not as urgent as it is for fathers in this situation.

If you are a married spouse and no one has filed for divorce or legal separation, either parent may move the children out of Arizona. However, once a spouse files for divorce or legal separation, the court issues an order that neither parent may move the children out of Arizona without a court order or the written consent of the other parent. Therefore, you can stop the move by immediately filing for divorce or legal separation.

Finally, the situation that most people facing the other parent who wants to move the children are in: you are divorced or never married and there is an order in place regarding the children. Under Arizona law, a parent may not move the children out of Arizona or more than 100 miles within the state after first giving 60 days written notice (mailed return receipt requested) or getting a court order or getting the written permission of the other parent if either of the following is true: the other parent has joint legal decision making (joint custody) or the other parent has parenting time (even if the moving parent has sole legal decision making). If you receive 60 days written notice of the proposed move, immediately file a petition with the court objecting to the move. The reason for the 60 days written notice is so that the non-moving parent can initiate an action in court opposing the move. If the other parent moves anyway, immediately call the police to make a complaint for custodial interference and file an enforcement and contempt action seeking the immediate return of the child to Arizona. Several years ago I had a client who ignored this advice and moved her child out of state. She regretted it.

I understand that in most states the parent who has custody or the parent with whom the children primarily live usually has an easy time getting a court order allowing a move out of state. In Arizona, however, it has been much more difficult. The trend seems to be that the parent wanting to move the children must demonstrate a compelling reason to do so. Also, the involvement and quality of the non-moving parent usually plays a major role in the judge's decision. For example, a parent who rarely exercises parenting time and who is an alcoholic will make it much easier for the other parent to move than a parent who exercises equal parenting time and has no substance abuse issues.

The statute governing this issue is A. R. S. Section 25-408, which sets forth the factors that the court must consider in deciding this issue. The burden of proof is on the parent proposing the move to show that relocating outside the State of Arizona is in the child's best interest. In determining the child's best interest the court shall consider all relevant factors including the following factors:

1. Whether the relocation is being made or opposed in good faith and not to interfere with or to frustrate the relationship between the child and the other parent or the other parent's right of access to the child.

2. The prospective advantage of the move for improving the general quality of life for the custodial parent or for the child.

3. The likelihood that the parent with whom the child will reside after the relocation will comply with parenting time orders.

4. Whether the relocation will allow a realistic opportunity for parenting time with each parent.

5. The extent to which moving or not moving will affect the emotional, physical or developmental needs of the child.

6. The motives of the parents and the validity of the reasons given for moving or opposing the move including the extent to which either parent may intend to gain a financial advantage regarding continuing child support obligations.

7. The potential effect of relocation on the child's stability.

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

9. The interaction and interrelationship of the child with the child's parent or parents, the child's siblings and any other person who may significantly affect the child's best interest.

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

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

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

13. Which parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent. This paragraph does not apply if the court determines that a parent is acting in good faith to protect the child from witnessing an act of domestic violence or being a victim of domestic violence or child abuse.

14. Whether one parent intentionally misled the court to cause an unnecessary delay, to increase the cost of litigation or to persuade the court to give a legal decision-making or a parenting time preference to that parent.

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

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

17. Whether a parent has complied with the requirement to take the parent information program class.

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

Often, an attorney with experience with this issue can really help. Whether you talk to me or talk to another attorney, talk to an experienced family law attorney. Good luck!

 

 

Published in Blog
Friday, 23 August 2013 17:37

Annulment in Arizona

Annulment of a marriage essentially means that a marriage is wiped from the slate. In other words, it never happened. Every state has annulment and the grounds and procedures for annulment vary from state to state.

The Arizona annulment statute says, "Superior courts may dissolve a marriage, and may adjudge a marriage to be null and void when the cause alleged constitutes an impediment rendering the marriage void." That makes the grounds for annulment about as clear as mud, doesn't it?

Fortunately, Arizona courts have more specifically defined the grounds for annulment over the decades. First, Arizona appellate courts have read the statute to mean that the Superior Court may grant an annulment if a marriage is void or voidable. The difference is that a void marriage is void at its inception no matter what the parties to the marriage do later, while a voidable marriage may be ratified by the aggrieved party rendering the marriage valid. The practical significance of this distinction is small because the parties to a void marriage still have to get a judgment of annulment to establish a legal record that their marriage was void.

So what have Arizona courts identified as grounds for annulment? The courts have identified the following grounds over the years.

1. Lack of capacity. This means that one or both parties lacked the capacity to enter into the marriage contract. This usually means that one of the parties was not mentally competent to enter into a marriage. For example, the party was mentally ill. It can also mean that a party was intoxicated, either on alcohol or other drugs.

2. Fraud. This means that one party tricked the other party into getting married. Essentially, one party lied to the other party about a material fact or facts that, if known by the other party, would have caused the other party to not enter into the marriage. Examples include hidden diseases, hidden drug addictions, ulterior motives (such as never intending to be faithful or intending to abandon an armed service member after getting the military dependent identification card), and hidden health problems.

3. Lack of consent. A party to the marriage did not consent to the marriage.

4. Duress. A person was forced to enter into the marriage, either by actual force or by threat of force.

5. Lack of parental consent. This applies to minors. If a minor does not have the consent of a parent, his or her marriage is voidable.

6. Undissolved prior marriage. No bigamy in Arizona. A divorce must be final before the subsequent marriage can be valid.

7. Incest. Per Arizona statute, marriages between parents and offspring, grandparents and grandchildren of any degree, uncles and nieces, aunts and nephews, siblings of the half blood or whole blood, and first cousins are void. Therefore, Luke Skywalker and Princess Leia Organa would have a void marriage in Arizona.

8. Same sex marriages. Per Arizona statute, same sex marriages are void in Arizona. Recently, the Arizona Court of Appeals has ruled on the annulment of same sex marriages in two cases. The trial court in both cases had ruled that the Superior Court did not have jurisdiction to annul a same sex marriage because they are void in Arizona. The Court of Appeals ruled that the statute voiding same sex marriages is exactly why the Superior Court must grant an annulment. Both couples had been married in California during a period when same sex marriages were legal in California. The Court of Appeals reasoned that the marriage was valid in the place where the couples were married, but such marriages are void in Arizona. Therefore, the trial court must grant an annulment.

9. No formality of marriage. For example, there was no marriage license and the ceremony was performed by someone not licensed to do so.

The procedure for an annulment is the same as for a divorce or legal separation. A petitioner files a petition and summons and has them served on the respondent. The respondent then generally has 20 days to file a response. The respondent either lets the annulment go by the default process (meaning the respondent never files a response to contest the matter) or the respondent files a response and contests the annulment. If necessary, the court will have a trial.

Also, the court may make orders regarding children, property, and debt in an annulment.

Reasons that people seek an annulment instead of a divorce vary, but the most common reasons include religion (e.g., a Catholic who does not want to get a divorce), pride (e.g., a person does not want to have to admit to having been married), and animosity (e.g., a person does not want to have been married to that particular person).

I am a Phoenix annulment attorney who has been in practice for 13 years. If you are considering an annulment, I am available to consult with you. Please call the below number.

 

 

Published in Blog

On January 1, 2013, new custody and parenting time statutes took effect in Arizona. One of the more obvious changes is that "custody" is now known as "legal decision making." Legal decision making is the right and responsibility to make the main life decisions regarding a child. It includes decisions regarding health, education, welfare, and religion. Parenting time means visitation. Parenting time is the schedule and amount of time the child spends with each parent.

One of the big speculations about the new statutes was that they would cause Arizona family court judges to keep awarding parents joint legal decision making in most cases and award equal parenting time in more cases than in the past. I made this speculation because the new statutes include phrases like "maximize parenting time" and I cannot see a better way to maximize both parents' parenting time with the children than an equal parenting plan. Many other family law attorneys in Maricopa County made the same interpretation of the new statutes, but we all agreed that only time would tell if we were correct.

It appears that time has proven us right. Most family court judges have since told parties and their attorneys that they are beginning with the assumption that they will award joint legal decision making and equal parenting time and they will only award something else if the evidence at trial gives them a compelling reason to do so. Joint legal decision making means that both parents make the decision together. Sole legal decision making means that the parent with sole legal decision making makes the decisions.

For example, the last time I heard a judge make this remark, I was covering a resolution management conference for another attorney. I was in my favorite judge's courtroom representing a party in a divorce with minor children. The judge cited Arizona Revised Statute Section 25-103(B), which states:

It also is the declared public policy of this state and the general purpose of this title that absent evidence to the contrary, it is in a child's best interest:

1. To have substantial, frequent, meaningful and continuing parenting time with both parents.

2. To have both parents participate in decision-making about the child.

The judge said that her interpretation of this statute is that she will award joint legal decision making and equal parenting time unless she finds that one of the parents is an unfit parent. This actually goes further than what I have heard other judges declare because she used the term "parental unfitness." People throw that term around a lot, but most people do not know what it actually means. It is a very high standard to meet when you are trying to prove that a parent is unfit. It basically means that a parent is unable or unwilling to provide the basic day-to-day needs of his or her child, including to protect the child from harm and to not harm the child. Therefore, to be an unfit parent, a parent must go beyond just being a bad parent or making bad decisions. Parental unfitness is the basic standard used in juvenile court to sever a parent's rights. Therefore, it looks like it will now be an uphill battle for any parent seeking an order other than joint legal decision making and equal parenting time, unless that parent has some very compelling evidence. In at least one judge's courtroom, that compelling evidence must be sufficient to sever a parent's rights in juvenile court.

Even with this new trend of awarding mostly joint legal decision making and equal parenting time, there is plenty of room for a judge to tailor a parenting plan to a specific family's needs because there are countless ways to equally divide parenting time. Judges can alternate holidays, such as entering an order that says that the child will spend Thanksgiving in odd-numbered years with the father and in even numbered years with the mother, while spending Christmas in odd-numbered years with the mother and in even-numbered years with the father. Alternatively, judges can divide the holidays themselves, such as entering an order that in odd-numbered years the child will spend December 24 at noon until December 25 at noon with the father and December 25 at noon until December 26 at noon with the mother, while doing the opposite in even-numbered years.

There are also several ways to evenly divide non-holiday time. My daughter spends every other week, from Sunday night to the following Sunday night, with me. On the alternating weeks, she is with her mother. This is commonly known as a week on, week off parenting plan. Sometimes, judges will make an order allowing for a mid-week visit or a mid-week overnight visit during the middle of the week, such as on Wednesday night.

There is also a plan known as 5-5-2-2, under which a child spends every Monday and Tuesday with one parent, every Wednesday and Thursday with the other parent, and alternates weekends, which consist of Friday, Saturday, and Sunday. The result is that every two weeks the child spends five days with one parent, then five days with the other parent, then two days with the first parent, and then two days with the other parent before starting the pattern all over again (this may make more sense if you visualize it by marking it on a calendar or finding it here: custodyxchange.com/examples/schedules/50-50/2-2-5-5.php).

Another equal parenting plan is commonly known as 3-2-2-3. It is just like the 5-5-2-2 parenting plan with one exception: the parents also alternate Monday through Tuesday and Wednesday through Thursday such that the child spends three days with one parent, then two days with the other parent, then two days with the first parent, and then three days with the other parent. On a calendar it looks like this: custodyxchange.com/examples/schedules/50-50/2-2-3.php.

The final common method to equally divide a child's time is known as 4-3-3-4. This means that one parent has the child the same three days every week (such as Sunday evening until Wednesday evening), the other parent has three other days every week (such as Wednesday evening through Saturday evening), and the parties alternate the remaining day (Saturday evening through Sunday in our example). You can see another example here: custodyxchange.com/examples/schedules/50-50/3-4-4-3.php.

Each of these equal time parenting plans have their advantages and disadvantages. Therefore, you should examine your family's situation and know which plan you want to seek before going to court. An experienced family law attorney can help. I offer a discounted initial consultation that lasts one hour and would love to help you with your family court matter.

 

 

Published in Blog

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

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

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

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

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

Published in Blog

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

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

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

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

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

 

 

Published in Blog
Friday, 19 July 2013 11:50

Parents' Rights

Mothers and fathers concerned about their Arizona custody rights get a lot of bad information. This article will take some of the confusion and myth out of this area of family law and get parents who are going through custody cases off to a good start.

People often believe that there is an obvious bias in family courts against fathers. That is silly. If such a bias existed, then joint legal decision making (joint custody) would not be by far the most common result and equal time parenting plans would not be so common. Parents should instead focus on the facts and evidence they need to support their position.

1. Equal parenting time

The first question parents should ask is how much time they can devote to caring for their children. Although both parents will probably be working full time, this is not just a question of work schedule but also the age of the children. For example, a parent that works a traditional 40 hour per week schedule but has older teenagers (15-17 year olds) and can devote evenings and weekends to the children's care should consider an equal time arrangement because the children can often care for themselves for the very short period of time between school and the end of the parent's work day or similar arrangements can be made for the children's care.

The younger a child gets, the more difficult these questions become and the more care the parents and their attorneys must take to evaluate the situation to come up with a schedule that will afford quality parenting time and be in the children's best interest.

2. Equal parental decisions

Joint legal decision making means that both parents are equally involved in the decision making process concerning the children. This includes all the major decisions regarding the health, education, safety and welfare of the children. Think of joint legal decision making as an equal voice in how your child is raised.

Joint legal decision making should be a priority and is appropriate in all cases except those that involve serious parental conflict, domestic violence, child abuse, substance abuse or those where parents are simply unable to co-parent. If the other parent fits into any of these categories, you should seriously consider asking for sole legal decision making. In Arizona, neither parent has any special privileges or advantages. If you are facing a parent who causes serious conflict, will not co-parent, has alienated or conditioned the children against you or any of the other issues we have listed in this paragraph apply, it is likely not in your children's best interest to have such a parent share in the decision making process.

3. False allegations of child abuse or domestic violence

Nowhere are parents’ rights placed at greater risk than those that involve false allegations of domestic violence or child abuse. Both mothers and fathers make false allegations. Because family courts are very sensitive to protecting children, it can sometimes feel as though simply making allegations without corroboration or evidence is enough to take a parent's rights away. Therefore, parents must be vigilant.

Parents who make false allegations often leave a trail of deception and have a history of it. Evidence tending to show the other parent’s lack of credibility including but not limited to the propensity for false statements and accusations, and documentary evidence such as text messages, emails, social media posts are a good start.

But, in addition, child custody cases that involve false allegations can and often should result in the other parent's deposition (testimony under oath outside of court) being taken as well as discovery (formal and written demand for information). Depositions and discovery can force the other parent to state all of the facts and purported evidence (which should be nothing but a trail of uncorroborated statements in false abuse cases) that he or she claims supports his or her position. These depositions and discovery can sometimes expose the false allegations for what they are and bring to the other side the reality that they are fighting a losing battle.

4. Modification of legal decision making and parenting time when a parent will not relent with alienation or false claims

Most legal decision making and parenting time cases settle. However, there are those that require modification proceedings. If you are a parent that has resolved your legal decision making case and settled for joint legal decision making, even when false allegations were made against you, but the other parent has not relented with the alienation and false allegations, it may be time to seek a modification. Parental alienation and conditioning of the children and ongoing false allegations are dangerous to the children's best interest. Children, especially younger children, are highly impressionable and if one parent consistently disparages the other, that form of emotional abuse can take a toll on the children.

It is your responsibility as a parent to bring this alienation, disparagement and false claims to the family court's attention if you want to protect your children against the ongoing emotional abuse. Family law appellate cases have held that any parent that makes serious false allegations of abuse should generally not have legal decision making.

5. The end

I hope that this article helps you sort through your issues. Thomas A. Morton offers a discounted consultation and would love to discuss your case with you.

 

 

Published in Blog
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Thomas A. Morton, P. L. L. C.
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(602) 595-6870
info@thomasamortonlaw.com

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