The questions and answers in this "Ask The Lawyer" section are provided for the purpose of demonstrating the types of legal issues that are sometimes seen in the Family Law Courts.The answers to the questions contain only general information and should not be relied on as legal advice. Every Family Court case is unique. If you have a matter that appears similar to any of the scenarios that you read below, you should be aware that: (1) even a slight difference in a factual situation can lead to a vastly different result; and (2) the laws are constantly changing and new laws are being enacted; thus, you should not rely on any particular answer given below, since the law may be different today than it was yesterday.
Legal advice cannot be given without a full consideration of all relevant information relating to your individual situation. Therefore, if you have an important legal issue, you should obtain a consultation with a qualified attorney. The general information provided in this web site should not be misunderstood as pertaining to your particular case or forming an attorney-client relationship between you and the law firm. Our firm does not answer inquiries from readers in this Ask The Lawyer section. To schedule a personal consultation, you may contact us for an appointment by telephone (602-383-3610) or by email (gary.frank@azbar.org). We'd be happy to talk to you.
Question:
I would like to change the custody and parenting time arrangement with my children. My ex-wife lives in Montana and I live in Arizona. The divorce occurred several years ago and was filed in the Montana courts. I was served in Arizona. At the time, I was a temporary resident. I was allowed only supervised visitation because of my legal status, despite the fact that I held a steady job in a bank, I was never abusive, and I didn't drink or use drugs. I am now a U.S. Citizen. For the past several years I have been asking my ex-wife if I can take my daughter to Disneyland and Sea World, and if I can bring her home to play with my other daughter, but she refuses. Where should I file my action to change custody and parenting time? In Arizona or Montana?
Answer:
Since your divorce occurred in Montana and your ex-wife and child have resided there for several years, you will need to file your action to change custody/visitation in that state. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a set of laws which is intended to be applied uniformly in all the states that have adopted it. The purpose is to prevent confusion and/or fighting between states in custody cases, and to help them determine which state should have the power to make the custody decision.
If you were to begin your custody case today, Montana would be considered the "Home State" of the child under the provisions of the UCCJEA, since she has lived there with her mother for more than six months before the case was filed. Arizona would likely decline jurisdiction because the divorce occurred in Montana and the child has never lived in Arizona.
But even though you will have to file the action in Montana, it may be worthwhile to do so. You will be given the opportunity to prove that you are a U.S. citizen of good character, and a responsible person who loves his child. You may be required to start slowly in order to reestablish a relationship with your child, but if things go well your parenting time is likely to be expanded in the future, and someday you and your daughter could be taking trips together to Arizona, and even to Disneyland and Sea World.
The above answer is presented for informational purposes only and should not be construed as legal advice pertaining to your particular case, nor should it be considered to have created an attorney-client relationship. For matters involving custody and parenting time, it is recommended that you contact an attorney for a legal consultation.
At the law firm of Gary J. Frank P.C., we have more than 30 years of experience in all matters pertaining to Family Law, including both litigation and mediation. For more information on our firm, take a look at our web site: www.garyfranklaw.com and our blog at www.garyfranklawblog.com.
Question:
I have had my niece for over a year. We live in Arizona and my sister lives out of state and doesn't have a stable place to live or the means to support her. I would like to seek full custody. Where do I go, what I should do?
Answer:
Arizona law gives a non-parent the right to obtain custody of a child under certain circumstances. Section 25-415 of the Arizona Revised Statutes provides that a child custody proceeding may be commenced by a person other than a legal parent by filing a Petition in the Superior Court. The petition must include a detailed set of facts establishing that (1) the person filing the petition stands "in loco parentis" to the child (meaning that the person has been treated as a parent by the child and has formed a meaningful parental relationship with the child for a substantial period of time); (2) that it would be significantly detrimental to the child to remain or be placed in the custody of either of the child's living legal parents; (3) that a court has not entered or approved an order concerning the child's custody within one year before this custody petition was filed, unless there is reason to believe that the child's present environment may seriously endanger his or her physical, mental, moral, or emotional health; and (4) one of the following applies: (a) one of the legal parents is deceased, (b) the child's legal parents are not married to each other at the time the petition is filed, or (c) there is a pending proceeding for divorce or legal separation of the legal parents at the time the divorce is filed.
The law provides that there is a presumption that it is in the child's best interest to award custody to the legal parent. But this presumption can be rebutted and overcome by showing, with clear and convincing evidence, that awarding custody to the legal parent is not in the child's best interest.
It is not easy for a non-parent to obtain custody, but it can be done.
The above is presented for informational purposes only and should not be construed as legal advice pertaining to your particular case, nor should it be considered to have created an attorney-client relationship. For matters involving custody of children, it is recommended that you contact an attorney for a legal consultation.
At the law firm of Gary J. Frank P.C., we have more than 30 years of experience in all matters pertaining to custody and Family Law. For more information on our firm, take a look at our web site: www.garyfranklaw.com and our blog at www.garyfranklawblog.com.
Question:
Our son is 16 and wanted to reside with father primarily because I live an extra 30 minutes to school than father does.
We have had joint custody for 4 years, since the divorce. I don't believe it is in our son's best interest to reside primarily with father who travels overnight about 3 times a week, who does not attend to medical issues on a timely basis.
I think our son should be in my care when father is not around. He stays at my home during some weekends . His father wants him to live at his home and that he spend every other weekend with me. I want equal time, in my home on school nights when dad travels. I am re-married, no step children at home, and am available to drive my son who also just got his driver's license.
ANSWER:
There is no easy answer to your question. According to Arizona law, a determination of whether to modify custody or parenting time must be made in accordance with the best interests of the child. (See A.R.S., Section 25-403.) In making its decision, the Court is required to look at all relevant factors. Since your son is 16 years of age, his preference may be considered a factor; but the wishes of a minor child are not determinative -- the judge will consider other factors, as well. One important factor is the father's traveling schedule. Teenagers need supervision and guidance, which your son's father cannot provide when he is out of town.
Although a 30 minute commute to school from your house is inconvenient and sometimes difficult, it must be balanced against the fact that your son will have little or no supervision in his father's home three days a week. The father's history of not attending to medical issues is another factor that the judge will consider in arriving at her/his final decision. You can make a convincing argument that during your son's critical teenage years, he needs supervision and guidance, and you are the parent best able to provide it.
In a dispute like the one you have described, which has no clear-cut answer, I recommend that you consider Mediation. This is a voluntary and confidential process which will allow you and your son's father to sit down with a qualified mediator, who will act as a neutral third party and will help you negotiate an arrangement that is acceptable to both of you. If the mediation is unsuccessful, then you will know you did your best to settle the matter, and you still have the option of taking your case to court.
The above is presented for informational purposes only and should not be construed as legal advice pertaining to your particular case, nor should it be considered to have created an attorney-client relationship. For matters involving custody and parenting time, it is recommended that you contact an attorney for a legal consultation.
At the law firm of Gary J. Frank P.C., we have more than 25 years of experience in all matters pertaining to Family Law, including both litigation and mediation. For more information on our firm, take a look at our web site: www.garyfranklaw.com and our blog at www.garyfranklawblog.com.
Question:
How do I get a divorce and custody of my 2 daughters if my wife and the guy she cheated on me with deny they slept together?
The only thing I have that proves anything is my wife's journal. She tells me I can't get a divorce on infidelity alone. I thought you could. Please help me. She also has recently been diagnosed with a mental illness.
Answer:
Arizona is a "No-Fault" divorce state. Unlike other states, in which you must prove specific grounds (such as infidelity) to be granted a divorce, Arizona allows a divorce when one of the parties believes that the marriage is "irretrievably broken" (the exception is if the parties signed an agreement for a "covenant marriage"). Therefore, in Arizona a person does not need to prove that his/her spouse cheated in order to obtain a divorce.
To obtain custody, a parent must prove that it would be in the best interests of the children for that parent to be named their legal custodian. The Court, in making a custody decision, will consider all relevant factors, including the factors listed in Arizona Revised Statutes, Section 25-403. Some of these factors include (1) the wishes of the parents; (2) the wishes of the children; (3) The relationship between the children and each of the parents; (4) the children's adjustment to their home, school, and community; (5) the mental and physical health of all individuals involved; (6) which parent is more likely to allow the children frequent and meaningful contact with the other parent; (7) whether one parent, both parents, or neither parent has provided primary care of the children; (8) the nature and extent of coercion or duress used by a parent in obtaining an agreement regarding custody; (9) whether either parent was convicted of an act of false reporting of child abuse or neglect; and (10) whether there has been domestic violence or child abuse.
If one parent believes that the other parent has a mental illness or substance abuse problem which adversely affects his/her ability to properly parent the children, then upon request the Court may appoint an expert to conduct a psychological and/or custodial evaluation and make a custody and parenting time recommendation to the judge.
The above is presented for informational purposes only and should not be construed as legal advice pertaining to your particular case, nor should it be considered to have created an attorney-client relationship. For matters involving custody of children, it is recommended that you contact an attorney for a legal consultation.
At the law firm of Gary J. Frank P.C., we have more than 25 years of experience all matters pertaining to Family Law. For more information on our firm, take a look at our web site: www.garyfranklaw.com and our blog at www.garyfranklawblog.com.
Question:
I have been divorced for two years. I received custody of my two children. My former spouse works long hours and rarely sees the kids. I recently received a job offer which will require me to move to a nearby state. My salary will be much greater than at my current job, and I will receive medical benefits for myself and the children. The problem is that I need to move in four months. What kind of notice do I need to send in order to be able to move with the children?
Answer:
Since you still have plenty of time before you have to leave for your new job, the first thing you should do is to send your former spouse a "60 Day Notice of Intent to Relocate" pursuant to Arizona Revised Statutes, Section 25-408(B) and (C). The notice can be a letter stating that you intend to move with the children. You should also include the prospective date of the move, the place you are going, the reason for the move (i.e., a new job), and other pertinent information. The letter should be sent by certified mail return-receipt requested, or served by a process server (and you should keep a copy for yourself). If your ex-spouse wishes to contest the move, he or she must file a petition to prevent relocation within thirty days after the notice is made.
Failing to send proper notice can result in losing custody of your children. Therefore, it is of critical importance that you follow the notice provisions of the statute "to the letter". To discuss the statutory requirements pertaining to relocation, contact our office today.
Gary Frank
Question:
I live here in Phoenix, Arizona. My ex has custody of our son and resides in Utah. My son wants to live with me. What do I need to do?
Answer:
Inter-state custody issues are handled under the Uniform Child Custody Jurisdiction and Enforcement Act. The UCCJEA is applicable in both Arizona and Utah. The purpose of the statute is to promote consistency and cooperation between courts of different states in matters involving custody disputes. The answer to your question depends upon a number of factors, including (1) where the original custody order was made, (2) the terms of the custody order, and (3) how long your son has resided in Utah with his father. You may need to file a motion to modify custody - but where it will be litigated depends on which state is considered the "home state" of the child.
The UCCJEA provides that Arizona is the "home state" of the child if it was his home state on the date of the commencement of the proceeding or was his home state within six months before the commencement of the proceeding. Thus, if your son resided in Arizona within the last six months, then Arizona's courts may have jurisdiction to modify the custody order. On the other hand, if he has resided in Utah for the past six months you may have to argue your motion to modify custody in that state. When an inter-state custody motion is filed, the UCCJEA allows the courts of both states to communicate in order to determine which state has jurisdiction to handle the matter.
Before filing a Motion to Modify Custody, I suggest that you consider trying to resolve the issue in mediation. Mediation is a voluntary and confidential process in which the parties meet with a neutral third-party - a professional mediator -- who helps them negotiate the dispute. A good mediator is adept at helping people work through sensitive issues and avoid the time and expense of litigation.
This response is provided for informational purposes only and should not be construed as legal advice or representation. To understand your rights and obligations under the particular circumstances of your case, you should seek legal counsel.
Gary Frank
Question:
Can my daughter's dad be granted joint custody when he only has supervised visits of his 11 yr old from previous relationship? The father of my 3 year old daughter has supervised visits with his 11 year old due to domestic violence (previous relationship). There was no domestic violence in this case, but the father moved residences without notifying me. I went to his home and the neighbors informed me that he had moved months ago (we typically meet at a public place to exchange our daughter). Therefore, I changed our 8 hour per week visitation to 2 supervised visits per week. If he takes me to court will what might he receive?
Answer:
It is fair to say that if the father of your three year-old child asks for joint custody, he has some important things going against him: First, a history of domestic violence could negate his claim, since Arizona law provides that "joint custody shall not be awarded if the court makes a finding of the existence of significant domestic violence." The law also provides that "the court shall consider evidence of domestic violence as being contrary to the best interests of the child." (See Arizona Revised Statutes, Section 25-403.03.) The fact that you were not the victim doesn't preclude the court from finding that the father has a history of domestic violence which is contrary to the best interests of your child.
Second: If the father moved and never told you, and then took the child for visits without disclosing his whereabouts, it demonstrates a lack of judgment which, in the event of an emergency, could have placed the child in serious danger. This is something a judge will take into consideration when deciding parental fitness.
In determining what type of custody and parenting time plan to order, the court will examine the "best interests" of the child based on, among other things, the factors listed in Arizona Revised Statutes, Section 25-403.
Without more information, it is impossible to accurately predict what decision the court might reach in your particular case. This response is provided for informational purposes only and should not be construed as legal advice or representation. To understand your rights and obligations under the particular circumstances of your case, you should seek legal counsel.
Gary Frank
Question:
What is the legal situation for a mother on moving with her kids without their dad? The father of my 2 children and I just split up. We were never married and neither of us have filed for custody of the children. Is it legal for me to move to another state without his permission? I'm not moving out of spite. I don't have any other place to stay with the kids for longer then a night at a time. Moving will be giving me a lot of help and support from family.
Answer:
The Arizona statute dealing with relocation of children, A.R.S., §25-408, applies only if there is a written agreement or court order entitling both parents to custody or parenting time. In a situation where parents are not married and have no agreement or custody order, there is no prohibition to moving out of state with the children. However, one must consider the risk that the parent who is left behind might file a motion in the Arizona courts asking for custody, and for an order that the children be returned to this state. If the motion is filed within six months of the move, then there is a real possibility that Arizona will be considered the "home state" of the children and that the custody case will be tried here (see the Uniform Child Custody & Jurisdiction Act). In making a custody decision, the Court will look at the best interests of the children. The factors that the judge will consider are listed in A.R.S., §25-403. Because of what is at stake and the possible repercussions, I suggest that you consult with a family law attorney before making a decision.
This response is provided for informational purposes only and should not be considered legal advice. Nor should you infer from this response that we represent you. In our law firm, representation requires a written Attorney-Client Agreement. To understand your rights and obligations under the particular circumstances of your case, you should seek legal counsel.
Gary Frank
Question:
Father wants nothing to do with the split up. He refuses to help with child care. Where do I start? I have been with the father of my 6 year old son for 9 years. He is being irrational about child care and refuses to help me. I have no car, he does. He constantly harasses me about how he never wanted this and it's all up to me to figure out how to get my son to and from child care. It is interfering with my work schedule. But he also wants to see him whenever he feels like it. We are unmarried. Could I get full custody of my child? What are the father's rights in this?
Answer:
If a parent wants custody and child support but was never married, then the appropriate first step would be to file a petition for Paternity under Arizona Revised Statutes, Section 25-806. Once paternity has been established, the Court will make a custody determination, using the factors listed in A.R.S. §25-403, and it will set up a parenting time schedule. In deciding whether to order joint or sole custody, the judge will consider the parental fitness of both parties, the best interests of the children, and whether there is a history of domestic violence and/or drug abuse. The Court will also make an order for payment of child support, using the guidelines contained in A.R.S. §25-403.
This response is provided for informational purposes only and should not be construed as legal advice or representation. To understand your rights and obligations under the particular circumstances of your case, you should seek legal counsel.
Gary Frank
Question:
Do I have to let the father of my child have visitation rights? There is no court order, and he is trying to get full custody.
Answer:
Without more information, this is a difficult question to answer. It would be helpful to know the age of your child, whether you are married to the father, whether the father has cared for the child in the past, whether the father has committed acts of domestic violence, and whether he has abused drugs or alcohol. These are among the many factors that the court will consider in determining what kind of custody or visitation is appropriate. The type of order that the Court enters will depend on the facts of the particular case. However, I can say this: If the judge determines that a father is an adequate parent, then it is likely that he will, at the very least, be allowed some parenting time (visitation) with the child.
You stated that the father, in your case, is trying to get full custody. If a father is a serious danger to the child then, obviously, the mother must take steps to prevent the child from being harmed. However, in many cases the problem is that the parents have different parenting styles, or that one parent is better than the other. If the father is an adequate parent, then refusing to allow him contact with the child could result in disastrous consequences. One of the factors that the Court considers in determining custody is "which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent," See A.R.S., Section 25-403(6). If the court feels that a parent is unreasonably withholding the child from the other parent and would continue to do so in the future, then it is possible that the parent who is withholding the child could lose custody, despite her good intentions.
I don't know enough of the facts to make a specific recommendation in your case. I suggest that you seek a consultation with an attorney, and maybe even a counselor who specializes in children and families, to discuss an appropriate parenting plan and determine the best course of action for you to take.
This response is provided for informational purposes only and should not be construed as legal advice or representation. To understand your rights and obligations under the particular circumstances of your case, you should seek legal counsel.
Gary Frank
Question:
How do I begin process of seeking sole custody of 11 and 13 year-old children who no longer want visitation forced with their father? Due to chronic instability in father's home, severe alcoholism, and threats of harm to my children (no abuse yet), both kids no longer want visitation with dad. I would like sole custody with limited visitation -- visitation being ONLY when the kids WANT to go see their dad. Right now, he is demanding his time from the divorce decree written four years ago and threatening me with legal action if I do not FORCE the kids to go with him. We have tried counseling for one year, and both kids are suffering mentally and emotionally from being forced into weekends at his house where he and live in girlfriend drink excessively and fight continuously. Are kids old enough to choose where they live and when they visit at age 11 and 13?
Answer:
If you feel that the children are in danger of being harmed (physically or emotionally) by their father, then you should consider filing a motion to modify custody and parenting time. If alcohol and inappropriate, intimidating behavior are problems, then it might be helpful to ask the court to appoint an expert to conduct a custodial evaluation. A court-appointed expert will assess the physical and emotional condition of the parents and children, as well as the interaction between the parents and children, and give the court an unbiased view. He or she can determine the extent to which drugs or alcohol are affecting the father's ability to parent, and recommend a parenting plan which will protect the children. To do this, the expert will conduct psychological testing of the parents, and then interview the parents and the children separately and together (each person individually, and then children with mother / and children with father) in order to assess their interaction. When the testing is completed, the expert will submit a written report to the court with her/his findings and recommendations. The report can be used as an exhibit in court at trial, and the expert can testify. The children are allowed to express their preferences (most likely to the expert, or to the judge in a private interview), and their wishes will be seriously considered. However, the final decision on custody and parenting time will rest with the judge, based on what he or she believes to be in the best interests of the children. I suggest that you seek a consultation with an attorney to help you understand your rights and determine the best course of action for you to take.
This response is provided for informational purposes only and should not be construed as legal advice or representation. To understand your rights and obligations under the particular circumstances of your case, you should seek legal counsel.
Gary Frank
Question:
Can custody of child be revoked because of new roommates? I have partial custody of my 15 year old daughter. I recently lost my job and now have a new job. I own my house and can no longer afford the payments so my two best friends moved in, both male. It is a 4 bedroom house so we all have our own rooms. My ex wife has told me that if my two room mates do not move out she is going to file for full custody of my daughter. Is a judge going to side with her? None of us have criminal records.
Answer:
The fact that you have partial custody means that a court has already found that you are a fit parent to care for your daughter. Courts today tend to lean toward ordering joint custody unless there is a reason why it would not be in the best interests of the child. There are many factors that the court looks at in determining which parent should have custody, and what type of parenting plan is best. We are in the midst of a very poor economy. Many people are losing their jobs and have to resort to taking in roommates. The fact that you are renting rooms to your two friends might be acceptable to the court, especially if they are good, responsible citizens who conduct themselves appropriately, and your daughter feels comfortable around them. On the other hand, it is possible that such a living arrangement could affect the custody order. A judge might feel that having two male roommates living in the same house with a teenage girl poses a risk. If one or both of the roommates have a history of irresponsible behavior, or if your daughter does not feel comfortable in that environment, then it is likely that the parenting plan will be changed. (Note: The court could also keep joint custody but change the parenting plan.) It all comes down to how the judge views the facts, and what he or she believes is in your daughter's best interest.
In my opinion, you should obtain a consultation with an attorney. By getting more background information from you, and being able to ask questions, the lawyer will be able to give you a better idea of what you can do to keep your custody order and parenting plan in place -- and he or she can provide strategies for opposing any move, on the mother's part, to change custody.
This response is provided for informational purposes only and should not be construed as legal advice or representation. To understand your rights and obligations under the particular circumstances of your case, you should seek legal counsel.
Gary Frank
Question:
WHAT IS THE PURPOSE OF A DEPOSITION? IS IT LIKE A COURT HEARING?
Answer:
A deposition is very different than a court hearing. Although both may involve a witness answering questions under oath, depositions and court hearings have completely different purposes. At a court hearing, you are trying to persuade a judge to make a ruling in your favor. A deposition is something else entirely -- it is a discovery tool which can be used for one or all of the following purposes:
(1) To obtain information which can be used at trial, or which may lead to new evidence;
(2) To force the witness to make admissions which can be used to cross examine her at trial; and/or
(3) To preserve the testimony of a person who might be dying or otherwise unavailable for trial.
A deposition can be an incredibly powerful tool. On the other hand, it can also be a very frustrating experience for a client. Why? Because unless you understand the purpose of a deposition and what your lawyer is trying to accomplish, it may appear that he doesn't know what he's doing. So, keep this in mind: You don't win a deposition. You use a deposition to win your case.
Here's an example: In a deposition, your attorney might ask questions which allow the witness to talk on and on, and explain her reasoning. You might wonder why your attorney isn't stopping her; why he is letting her make you look bad. The answer is that the purpose of a deposition is discovery. It is helpful for your attorney to know the opponent's position on the issues so that he can formulate strategies to defeat it. Sometimes your attorney might ask open-ended questions in order to obtain new information which can be used at trial. At other times, the questions may be direct and pointed, like in a court hearing. Here, the attorney is attempting to force the witness to make an admission "on the record." Later, at trial, during the witness' cross-examination, the attorney can read from the deposition transcript in order to impeach or undermine her testimony.
Here's another example of how depositions and court hearings are different: At a court hearing, an attorney will usually ask his questions methodically and in a logical order. In contrast, in a deposition the attorney might jump around from one subject to another; he might leave a subject before it is finished and come back to it later; and he may ask the same question several different times, in several different ways. It may look like the attorney is flustered or unprepared when, in reality, this is a well-planned strategy. That strategy may be to throw the witness off and make her feel uncomfortable; or it might be to determine whether her testimony is consistent (maybe you can catch her in a lie); or it could even be to persuade her to change her mind.
One more example: During the course of your attorney's questioning, you might feel that he is right on the cusp of backing the witness into a corner. He's tying her in knots with her testimony. And just when the lawyer could go in for the kill -- he lets her off the hook. You might wonder why he didn't ask that final question . . . the big one . . . the one that would prove she's lying and would smash her argument to pieces. You think, "How did my attorney miss that?" The answer is that he didn't. He's setting her up. He's saving that bombshell-of-a-question for trial.
Just remember, a deposition is not like a court hearing. You don't win a deposition. It's a discovery tool -- and an excellent and very useful discovery tool, at that.
This response is provided for informational purposes only and should not be construed as legal advice or representation. To understand your rights and obligations under the particular circumstances of your case, you should seek legal counsel.
Gary Frank
Question:
At what age can a child have the right to choose who they want to live with? Or do they have a say so? We have a family court case that has been going on since 2002. Our child will be nine this year. He sometimes refuses to go to father's home on weekends, with very emotional act outs and violent displays. With me having a court order to obey, I have no choice but to send him. However, after the child said many things that concerned me, I started to address the problem with the courts. But it was not long before I realized that it's basically my word against the father's. How am I to prove what my child was saying this to me? Our child has a preference on who he wants to live with, but when will the court take that into consideration? At what age will I not be at fault if he does not want to go to his father's house for the weekend?
Answer:
Where parents cannot agree on matters involving custody and parenting time of a child under the age of majority, the ultimate decision will be made by the Court. As the child gets older (especially in the teen years) the judge will consider the child's preferences; but where he lives, and how often he is required to see the non-custodial parent, will remain up to the Court. Where a parent is concerned that a child is being adversely affected by contact with the other parent, there are a number of strategies that can be used to help get to the truth, and avoid a "he said -- she said" scenario. For instance, a parent can ask the court to appoint an expert to conduct a "Custodial Evaluation." In the process, the expert will interview the child and the parents, and possibly conduct psychological testing. Then the expert will write a written report to the Court containing his/her recommendations for custody and parenting time. Either party will have the opportunity to object to the recommendations and ask for a trial. Another strategy to help determine an appropriate custody and parenting time plan is to ask the court to appoint a different type of expert, called a "Special Master," who remains on the case and deals with the parents and the child, making recommendations to the judge as the need arises.
Divorced parents are sometimes faced with an agonizing decision: "If I force my child to visit the other parent, he may be harmed physically or emotionally. On the other hand, if I refuse to send him, I may lose custody altogether." This may seem like a "no-win" situation. However, there is another, better, option -- asking the Court to appoint an expert. By using a custodial evaluator, or a special master, the wishes of a child can be heard and his needs can be determined, so that the judge can make a knowledgeable decision. It is no longer "he said -- she said." Now you have proof.
Keep in mind that the expert does not represent you. He or she is a neutral third-party who is appointed by the court and may see things differently than you do. It may help for you to have an attorney who can act as your advocate -- someone who will take your side and fight to protect the interests of your child.
This response is provided for informational purposes only and should not be considered legal advice. Nor should you infer from this response that we represent you. In our law firm, representation requires a written Attorney-Client Agreement. To understand your rights and obligations under the particular circumstances of your case, you should seek legal counsel.
Gary Frank
Question:
Can my son be taken from me? I live in Phoenix, AZ and am going through divorce process. I have befriended a gentleman with a risk level 2 intermediate attempted sexual conduct, with a minor felony. The only restriction he has is that he has to register every time he moves. He does not have parole or anything like that. Can my husband get custody of my son because I am dating this man?
Answer:
The answer to your question may depend upon the age of your child, as well as the background of the man you are dating, and facts that gave rise to the felony. But the short answer is "yes," you may indeed be putting the custody of your son at risk by dating a man who has been convicted of attempted sexual contact with a minor. He may be a nice enough guy, and he may even have plausible reasons for his conviction, but that type of felony raises a red flag to the Court. When a judge makes a custody determination, he or she will look at the best interests of the child and will consider (among other things) safety issues such the living environment, whether a parent exhibits good judgment, and the types of adult friends and acquaintances that a parent brings into the home. If the judge feels that a parent is placing a child at risk of harm, then changing custody is a very real possibility. I suggest that you seek a consultation with an attorney, so that you can go over all the facts carefully and make a responsible decision.
This response is provided for informational purposes only and should not be considered legal advice. Nor should you infer from this response that we represent you. In our law firm, representation requires a written Attorney-Client Agreement. To understand your rights and obligations under the particular circumstances of your case, you should seek legal counsel.
Gary Frank
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