Some appellate decisions just warm my heart. The Arizona Court of Appeals recently issued such a decision, Calvin B. v. Brittany B., and ruled against one of the most despicable types of parent: one who does everything he or she can do to limit, control, and even eliminate the other parent’s relationship with their child.

Calvin and Brittany divorced when their son was very young. They agreed to an arrangement wherein Brittany would have sole legal and physical custody of their son, but Calvin would have "liberal" parenting time as the parties agreed. Brittany then proceeded to limit Calvin’s contact with their son. As a result, Calvin sought the court’s help in securing more time with him. Over the course of the next several years, Brittany used orders of protection and other barriers to block Calvin’s parenting time. She also violated the court’s orders several times. Calvin, however, was not a model parent either, failing to exercise a lot of his parenting time, not immediately seeking enforcement of the court’s orders, and failing to take a parenting class that the court had ordered him to take.

Brittany eventually filed in juvenile court to terminate Calvin’s parental rights on the basis that Calvin had abandoned their child. The Superior Court granted the termination petition and Calvin appealed.

"Abandonment" means the failure of a parent to provide reasonable support and to maintain regular contact with the child, including providing normal supervision. Abandonment includes a judicial finding that a parent has made only minimal efforts to support and communicate with the child. Failure to maintain a normal parental relationship with the child without just cause for a period of six months constitutes prima facie evidence of abandonment. When circumstances prevent a parent from bonding traditionally with a child, the parent must act persistently to establish the relationship and vigorously assert his or her rights. Non-support alone does not establish abandonment.

This is the heartwarming part: the Court of Appeals overturned the Superior Court and cut right to the chase:

   The record shows that for much of the period after the dissolution in 2008,
   Brittany interfered with Calvin’s opportunity and ability to develop a normal
   parental relationship with their son. A parent may not restrict the other parent
   from interacting with their child and then petition to terminate the latter’s
   rights for abandonment. For this reason, we conclude the record in this
   unusual case lacks evidence sufficient for the court to conclude that Brittany
   proved by clear and convincing evidence that Calvin abandoned his son.

The Court of Appeals also stated, "Having herself curtailed Calvin’s ability to develop a relationship with his son, Brittany did not prove by clear and convincing evidence that Calvin abandoned the child by failing to provide normal parental supervision," and "We cannot accept the proposition that the court acted properly in granting Brittany’s petition to terminate Calvin’s parental rights based on abandonment because he did not take legal measures to reduce the barriers Brittany erected to his ability to parent." In fact, the appellate court remarked that, given the hurdles that Brittany erected, Calvin’s ability to manage as many visits as he did manage was "remarkable." Also note that the Court of Appeals examined both parent’s behaviors: the court examined Brittany’s bad conduct but also scrutinized Calvin’s conduct in attempting to build a relationship with his son.

One may think that this is a no-brainer, but remember that the trial court granted the petition to terminate Calvin’s parental rights! The trial court judge didn’t get it. It took an appeal to set things right. Although Calvin ultimately did not lose his parental rights, he suffered in other ways, including not seeing his son for long periods, only seeing his son a little bit when he did see him, having his parental rights terminated for a time, the agony of the termination and appeals process, and the damage to his relationship with his son. However, Calvin could have avoided much of this by acting differently.

First, Calvin should have avoided a vague parenting time order. He agreed that he would see his son when the parties agreed (which really means whenever Brittany feels like it). If Calvin would have insisted on a set schedule in the Court’s order he would not have had to rely on Brittany’s willingness to allow him to see their son.

Second, Calvin should have followed the court’s orders. Calvin failed to pay most of his child support, which is a factor in abandonment cases. It also has consequences in non-abandonment cases. He also failed to take a parent information class and, when the Superior Court ordered that he could have more parenting time after he took it, he failed to take it for over a year! Furthermore, Brittany used this against him in the abandonment case. Had Calvin taken it the first time, or even the second time, he could have seen his son more and Brittany would have had less to use against him in the abandonment case.

Third, Calvin should have exercised all of the parenting time that the court allowed him to exercise. I never understand why people fight for parenting time, and then only use some of what they get or none at all. They are simply proving that the other party was right and hurting themselves in future court battles. More importantly, they are missing time with their children that they will never get again. Had Calvin used all of his parenting time, he would have never had to worry about the abandonment case.

Finally, Calvin should have rigorously enforced his rights. Calvin did eventually seek enforcement in the Superior Court, but that was after about three years of Brittany controlling and restricting his contact with their son. Had Calvin rigorously enforced his rights, he probably would have won the abandonment case at the trial court level or would not have had to face it at all. More importantly, he would not have missed out on so much time with his son. When the other parent behaves like Brittany behaved in this case, the only sensible course of action is to rigorously enforce your rights. It is aggravating, stressful, and difficult, but losing your child or losing a lot of time with your child for several years is much worse.

Don’t be like Calvin (or Brittany). If you need help not being a Calvin (or Brittany), I would love to talk to you. I am a Phoenix are family law and juvenile law attorney.

 

 

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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!

 

 

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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.

 

 

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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.

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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.

 

 

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One of the largest concerns for parents in a divorce is legal decision making (formerly known as child custody) and how the family court will decide it. While there are many judges in Maricopa County who seem to lean one way or the other, the gender of the parent is a non-factor in the statutes regarding legal decision making (custody). Many people also think that income or wealth is a factor, but it is not a factor.

Arizona family law courts decide legal decision making based on Arizona Revised Statute § 25-403, which requires the family court to make its decision based on the best interests of the child and consider all relevant factors, including the following:

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

2. 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.

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

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

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

6. 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.

7. 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.

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

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

10. Whether a parent has taken the parent information program class.

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

Arizona family courts do not consider the following factors:

Whether each party was a good spouse or significant other. Many people think that if they can prove that the other party is a bad person or was a terrible spouse, they will "win" the custody battle. However, the family court will only consider things that pertain to the children’s best interest. Telling the family court that the other party committed adultery, or looked at pornography, or is lazy will often give the impression that you are seeking to use the children to punish the other party for issues between you and him or her that have little to do with the children.

Gender. Many people think that the mother gets the children. However, courts do not use gender as a factor in the decision. The family court considers more important factors such as each parent’s relationship with the child and each parent’s availability to provide for the child’s care.

Income. People often ask something like, "How could the court giver her (or him) the kids? She (or he) can’t provide for the kids." However, that is why Arizona has child support. Income is a non-factor in the decision making process. The family court expects parents to provide food, clothing, and shelter. A parent’s ability to provide more impressive food, clothing, and shelter, or additional items, is not relevant to the family court’s decision.

The following items are also important:

1. Arizona family law courts can award sole legal decision making, which means that the parent with sole legal decision making makes the children’s major decisions for them, such as decisions regarding health, education, and welfare. Joint legal decision making means that the parents make the decisions together. Joint legal decision making far more common than sole legal decision making.

2. The older and more mature the child, the more weight his or her preference will have on the court’s decision.

3. Making unsubstantiated or false allegations against the other party, such as abuse, neglect, alcohol abuse, or illegal drug use, will often backfire. Credibility matters, and making serious allegations with nothing to substantiate them will damage a parent’s credibility.

4. The more reasonable party often gets what he or she wants.

5. The best outcome of a legal decision making (custody) case is a settlement. There are two people who know the children better than anyone else and who are most qualified to make a decision that is in the children’s best interest: their mom and dad. If the children’s parents cannot focus on the children’s best interest instead of focusing on other things, then a stranger who happens to be a judge will listen to about three hours of evidence and will make a decision. The judge will do his or her best to make a decision in the best interests of the children, but the judge does not know the parents or children and is not in the unique position of the parents. Therefore, the best outcome is when both parents focus on their children, not on themselves or the other parent, and make an agreement.

6. The court’s order is a guideline and a backup plan. Whether the family court’s order is the result of a judge’s decision or the parents’ agreement, the parents can deviate from it any time they want to do so, as long as they BOTH agree to do so. If the parents cannot agree, they must stick to the order. Ideally, the parents will be flexible and will work with one another for the children’s best interests. For example, Dad has the children this weekend. Mom wants to take the children on an annual extended family camping trip with her. If they go, the children will see extended family that they love and do not see very often. Dad should allow Mom to take the children. In return, Mom should be flexible in the future and perhaps allow Dad to have the children on her next scheduled weekend with them.

If you are in a legal decision making (custody) case and need to speak with an attorney, Thomas A. Morton is available for you. Thomas A. Morton is a divorce and custody attorney serving Phoenix, Glendale, Peoria, and every other city in Maricopa County.

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On January 1, 2013 Arizona's new statutes on custody and parenting time will take effect. Among the coming changes will be a change in terminology from "custody" to "legal decision making." More importantly, the new statutes require a court to "maximize" the non-primary residential parent's parenting time. Of course, we will not know for sure what this means until Arizona's courts have interpreted the new statutes. However, the new statutes seem to require Arizona's courts to truly maximize a parent's time with his or her child, rather than "giving" the child to one parent and giving the other parent every other weekend from Friday evening until Sunday evening.

How will this effect a non-primary parent who lives hundred or thousands of miles away from the primary residential parent? Again, we will not know for sure until Arizona's family courts interpret the new parenting time statutes, but it appears that the family court should award as much time as possible to the non-primary parent. This would mean that the days of splitting school breaks in half are over. For example, if the children live in Phoenix, Arizona with their mother, and their father lives in Texas, the family court will not simply make an order sending the children to Texas for every other spring break, every other fall break, four or five weeks every summer, and one-half of each Christmas break. Now, it looks like Arizona's family courts should craft visitation orders awarding the parent living away from the children with every spring and fall break and most or all of every summer. This presents the interesting question of whether the requirement to "maximize" the non-primary parent's time with the children requires the family court to award all of every Christmas break to the non-primary parent. Most families celebrate Christmas and this holiday can often be the most hotly contested holiday in family court. Or what about the traditional vacation every summer with the primary parent? Arizona's statutes require the family court to consider the children's best interests, and this is the primary guiding principal to family courts making parenting plans. The next question is therefore whether it is really in the children's best interest to spend every Christmas with one parent, or whether it is in the children's best interest to spend no vacation time with the primary residential parent. Time will tell, but I predict that Arizona's family courts will balance all considerations, including the requirement to maximize time for the non-primary parent, the best interests of the children, and the rights of both parents.

Therefore, I believe that courts will give the long-distance parent the bulk of the summer, spring, and fall breaks, but continue to split the winter/Christmas breaks. If you have this issue or any family law issue pending in Arizona's courts, I am ready and willing to consult with you, whether you are looking for an attorney or you are just seeking advice.

Published in Blog

On January 1, 2013, new custody and parenting time ("visitation") statutes take effect in Arizona. The new statutes will end use of the term "custody." Instead, "custody" will become "legal decision-making." As with custody, the Court may award one parent sole legal decision-making, or award both parents joint legal decision-making. Perhaps this is not much of a change, because, under the old statute, legal custody meant the legal right to make the major decisions (such as on health, education, and welfare) on behalf of the children. The factors in the legal decision-making statute have changed slightly, but they remain essentially the same. The potential for change is that the new language may mean that the parent with sole legal decision-making may dictate every day decisions, such as personal care, while the children are in the care of the other parent. This does not seem likely, but only time will tell as Arizona courts begin to make decisions interpreting the new statute. The key issue will be what courts consider to be "routine" decisions and what they consider to be "major" decisions. The sorts of decisions that may be subject to interpretation are whether a child receives a tattoo, what hair and clothing styles the child wears, whether a child is allowed to date, etc.

The potentially more significant changes are in the parenting time/visitation statutes. The old statute generally required that the non-custodial parent should have "frequent and meaningful" contact with the children. The new statutes include the words "frequent" and "meaningful," but also include the words "substantial" and "maximized." For example, the new statutes require that the court enter a parenting plan for the parents that "maximizes their respective parenting time." Does this mean that courts are required to first and most seriously consider an equal time parenting plan? Again, time will tell as courts make decisions interpreting the new statutes.

I predict that the new language will require courts to maximize the non-primary residential parent's parenting time, but not necessarily require an equal time parenting plan. The judges will still have much discretion, but the trend will be towards more equal or close-to-equal time. The legislature does not add words to statutes not intending to change the meaning. Because the legislature has added the word "maximize," for example, the legislature most likely meant it. Therefore, instead of granting every other weekend from Friday night to Sunday night and Wednesday evening to a parent, courts will award more substantial time. Examples may include every other weekend from Thursday night to Monday morning and every Wednesday overnight, or equal time. Again, time will tell.

All of the above is just a brief summary of the new statutes and my thoughts on them. If you find yourself in a divorce, paternity, custody, legal decision-making, parenting time, visitation, or any other family law situation, please do not hesitate to contact me to schedule a consultation. Thanks for reading my blog!

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