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Ask the Lawyer

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.

To find out more about Gary Frank, read his profile.


QUESTION:

SETTING ASIDE A DECREE

My husband lied and cheated me and, in the end, got me to sign a Decree of Dissolution of Marriage that was unfair. It gave most of our community property, including a family business, to him; and I received very little. The divorce took place two years ago. I’m now struggling. Can I get the Decree thrown out?

ANSWER:

The fact that a Decree may have turned out to be unfair does not mean a judge will throw it out (or in legal terms, "set it aside.") There is a very strong legal principle known as "Res Judicata" that deals with the finality of judgments. In essence, it says that there is a point when a case must end and a judgment must become final, regardless of how unfair a party may think that judgment is. Our legislature and courts acknowledge that some judgments are obtained through misconduct of a party, such as fraud, duress, mistake, inadvertence; or even a bad decision by a judge. Therefore, laws have been enacted giving an aggrieved party a number of ways to get out from under a bad judgment. For instance, a party has a right to appeal (all the way up to the U.S. Supreme Court). In addition, Rule 85 of the Arizona Rules of Family Law Procedure allows a party to request relief from a judgment that was obtained by misconduct, such as fraud, misrepresentation, mistake, inadvertence, etc. However, considering the principle of Res Judicata, the rule provides that the aggrieved party must move to set aside the judgment within 60 days after the judgment was finalized.

There is a part of the rule which is known as the "catch-all" provision. It allows a judge to set aside a judgment "for any other reason justifying relief." The court can set aside a judgment under this part of the rule even beyond the 60 day limitation period. It sounds pretty simple, but it's not. Relief under this section is very rarely granted, and only where one can prove extraordinarily harsh and unfair circumstances. But keep in mind that if the judgment is harsh or unfair because of the other party's misconduct (such as fraud, misrepresentation, etc.) -- or for reasons of mistake, inadvertence, neglect, or newly discovered evidence - then the party will still be prevented from obtaining relief if the 60 day period has expired. Thus, your Decree might be harsh and unfair, but if you signed it due to your ex-husband's fraud or deceit, the 60 day rule applies and you might still be denied relief. The rule also provides that if a judgment is void (e.g., if the Court lacked jurisdiction) then the Decree may be set aside at any time, however, I would need more information from you to determine whether your Decree is void.

The bar is set very high for overturning a Decree. There is a six month limitation for bringing an action where the Decree was obtained because of misconduct such as fraud or misrepresentation; or where it was caused by mistake, inadvertence, excusable neglect, etc. There is a provision in the Rule allowing the court to set aside a judgment or Decree even after the six month limitation period has expired, but it is up to the person asking for help to demonstrate that there are extraordinary circumstances (not including the types of misconduct described above) that are so harsh and unfair that they would justify relief from the judgment. In making a decision, the Court will also consider the principle of finality of judgments (Res Judicata) and the length of time that passed between the date the Decree was entered and the time that the person filed a motion to set it aside.

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 questions are hypothetical, and the answers 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:

Does Arizona recognize Domestic Partners? I would like to get on my partner's health insurance policy, and the company said I can do that as long as my state recognizes domestic partnerships. Is it legally recognized in Arizona?

ANSWER:

I don't have enough information to be able to give you legal advice pertaining to your specific situation. But I can say, in general, that domestic partnerships are recognized in Arizona, but only for limited purposes, such where a patient in a hospital is unable to make or communicate healthcare treatment decisions. Arizona Revised Statutes §36-3231 provides that, in cases where the patient is unmarried, a domestic partner may be allowed to act as a surrogate. Certain cities in Arizona recognize domestic partnerships and have registries where partners can file a declaration of domestic partnership or a civil union, but their rights are generally restricted to visiting the other partner in a hospital or health care facility. Some insurance companies provide options for domestic partners, and others don't. You would have to contact your insurance company to determine what, if any, benefits are provided.

It is important to note that there is no law in Arizona giving domestic partners the same or similar rights as a couple who is married. By law, married couples in Arizona have inheritance rights; the right to be covered on health insurance policies; the right to make healthcare decisions for a spouse under certain circumstances; and, in the event of a divorce, the right to a fair division of community property, the right to receive spousal maintenance (if they qualify) under the statute, and parental rights. For domestic partners, however, none of those things are automatic, and some of them (such as a community property division, and receiving spousal maintenance) are precluded under Arizona law.

Now that both heterosexual and same-sex couples have the right to marry in Arizona and all other states, domestic partnerships and civil unions are not as favored, and the development of laws around these forms of partnership has slowed.

If you have additional questions about domestic partnership law and your legal rights, I suggest that you make an appointment for a consultation with a Family Law attorney.

QUESTION:

Several years ago, I had custody of my grandchildren in California. My daughter went through treatment for drug abuse and gained back custody of her children. However, her addictions have come back and she has subjected her children to risks. She's in California and I'm in Arizona. I need to regain custody of my grandchildren. How can I do this from another state?

ANSWER:

Without additional information, it is impossible for me to provide legal advice specific to your particular matter. However, in general, I can say that grandparents in Arizona, and in other states, do have rights, including the right to be awarded custody of a grandchild under certain circumstances if they stand "in loco parentis" to the child. (For example, if the grandparents can show that the child resided with them for a substantial period of time, and that they "stood in the shoes of" a parent, then they are considered to be "in loco parentis"). Grandparents have custodial and visitation rights under Arizona law. Arizona's grandparent-rights statute is Arizona Revised Statutes, Section 25-409.

Inter-state custody cases are governed by a set of laws known as the Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA). The state where the child has resided for the past six months prior to a court action being initiated is considered to be the "Home State" of the child. Generally (but not always) the child’s "Home State" is the state that has "jurisdiction" and it is where the custody matter will be litigated. However, the Court considers a number of factors in deciding jurisdiction, including which state has the most significant connection with the child (school, doctors, family members and friends who are familiar with the child’s needs, etc.); and whether substantial evidence is available in the state concerning the child’s care, protection, training and personal relationships.

The UCCJEA provides that a state can accept temporary emergency jurisdiction if the child is present in that state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to mistreatment or abuse.

Under the UCCJEA, a state can choose to decline jurisdiction where it believes, that, under the circumstances (and considering the statutory factors), another state is the more appropriate forum.

In order to determine what type of case you have, and where it should be filed, I would need to sit down with you and gain a better understanding of your situation.

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 questions are hypothetical, and the answers 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 have three teens that do not want to visit their dad. They are all in counseling for their anger towards him. What plan of action can I take to validate their feelings and their right to express themselves?

ANSWER:

In making decisions regarding parenting time and legal decision-making authority, the courts in Arizona are guided by the law, as set out in Arizona Revised Statutes, Section 25-403.

I am frequently asked at what age a child can decide where they want to live, and whether or not they want to see a parent. The answer to that question is that children under the age of majority are not allowed to make those kinds of choices on their own. Those are decisions for parents -- and when the parents can't agree, a judge will make the decision. When children get into their teens and closer to their 18th birthday, the courts will increasingly consider their desires, and their reasoning. Judges have the right to interview children, but they rarely do so. It is even more rare for children to be allowed to testify in a Family Court trial or hearing. However, it is common for a judge to appoint a behavioral health expert to interview the children (and sometimes the parents) and make a report and recommendation to the Court. There are a number of different ways that this can be done. The judge can order the parents to participate in a Parenting Conference, or a Family Assessment; or the judge can order a Custodial Evaluation. All of the various options allow for the children to be interviewed by an expert. The custodial evaluation process results in an in-depth investigative report and recommendation to the Court, and it may include psychological testing. Where the case is high-conflict, the Court may also appoint a Parenting Coordinator, or even a separate attorney to represent the children. The option that the Court ultimately selects will depend on a number of factors, including the level of conflict; the types of issues presented; how complicated those issues are; what kind of evaluation the parents want; and to some extent, what the parents can afford.

The Court's goal is to protect the best interest of the children. Most judges are not mental health or child development experts; and, anyway, they don't have sufficient time to do an in-depth investigation of their own. Therefore, they utilize experts to help determine the facts of the case, and the needs of the children. In this way, the children's voices can be heard.

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 questions are hypothetical, and the answers 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 read a study suggesting that Arizona determines spousal maintenance based on a specific formula. Is that true?

ANSWER:

No.

Unlike some other states, Arizona does not use a formula for calculating spousal maintenance.

Arizona did, at one time, use a formula for calculating support. However, it was repealed about the time I began practicing law, over thirty years ago. Some years later, Arizona adopted a new set of Spousal Maintenance Guidelines using a different formula for calculating spousal maintenance (one that is much like the formula used in the study you read online). However, in practice, the Maricopa County Superior Court judges uniformly rejected those Guidelines, as well, and refused to accept them as a basis for awarding spousal support. Eventually, the Spousal Maintenance Guidelines were dropped altogether.

In the years that followed, efforts were made to enact new Spousal Maintenance Guidelines, and a committee was even formed to look into the subject and make recommendations. But the idea has gone nowhere, and no new formula has been accepted.

Spousal Maintenance in Arizona continues to be determined using a "needs-based," analysis, based on the factors listed in Arizona Revised Statutes, Section 25-319. The statute sets out a two-pronged analysis. The judge will apply the factors contained in Section "A" of the statute to determine whether the applicant is entitled to an award of spousal maintenance. If spousal maintenance is deemed appropriate, the judge will go to Section "B" of the statute to determine the amount and duration of the spousal support award. The problem is that none of the statutory factors is specific. They are all very general. This gives the judge a great deal of leeway; and, as a result, awards of spousal support may widely vary from court to court, and from judge to judge.

Thus, the best way to argue a case for spousal maintenance is to:

(1) Use the statutory factors to show why you are in need of, and entitled to, spousal support;

(2) Provide proof of how much your monthly expenses exceed your income; and

(3) Demonstrate what you will need to do, and how long it will take, to increase your income to the point where you can approximate the standard of living you had during the marriage (e.g., you may need to finish school, take a trade course, grow your own business, move up the ladder at your current employment, etc.). This will give the judge a basis for determining the amount and duration of the spousal maintenance award.

Judges are given a great deal of discretion in deciding spousal maintenance disputes; and every judge will make that determination using not only the law, but also his or her own world view. Unlike child support, there is very little uniformity in determining spousal maintenance in Arizona. For this reason, it is important to make a well-organized and convincing argument at trial.

For a look at the factors the Court uses to determine spousal maintenance, see A.R.S., Section 25-319.

http://www.azleg.gov/FormatDocument.aspinDoc=/ars/25/00319.htm&Title=25&DocType=ARS.

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 live in Colorado. My 2 year old niece has lived with her mother in Arizona for the past eight months.  The mother has no job and a history of drug issues, and I am concerned that she is not properly caring for the child. Someone needs to protect this child.  What rights do I have as the aunt?  I want to make sure this child is safe and cared for.

ANSWER:

Thanks for writing.  Since the child has been in Arizona for more than six months, Arizona may be considered the Home State of the child under the Uniform Child Custody Jurisdiction and Enforcement Act.  Thus, unless there are compelling reasons why the case should be heard in Colorado, it is likely that the Arizona courts would have jurisdiction to decide the matter.  There are three possible routes you could take:

(1) CPS - Dependency Case: If you believe the child is in danger, you can contact Child Protective Services and/or the police.  They will likely do a welfare check, and if it is determined that the child is being abused or neglected they could remove her from the home.  You would then need to contact the caseworker and offer to care for the child.  You could also file a private Dependency Petition and ask the Juvenile Court to place the child with you.  A judge will determine whether to put her in a foster home, return her to the mother, or place her with you.

(2)  Guardianship: If you believe that the mother is not able to properly care for the child, you can file a private Guardianship Petition with the Probate Court in Arizona and ask that you are named as the child's legal guardian.

(3) Third Party Custody: If the child has lived with you in the past and you have cared for her for a substantial period of time, you may have the right to petition for custody in the Family Court on an "in loco parentis" basis.  If the judge feels that it would be significantly detrimental to the child to remain or be placed in the care of either of her legal parents then you may be awarded custody under Arizona law.

There are pros and cons with each of the above-approaches, and I suggest that you obtain a legal consultation to determine the best route to take.

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 questions are hypothetical, and the answers 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 was in a same sex relationship for a several years. While my partner and I lived together we had a baby using donor sperm. My partner gave birth to a beautiful little boy five years ago, and we have both raised him. My partner and I broke up a few months ago and now my ex will not allow me to see our son. She says that since I am neither the biological nor the adoptive parent of the child, I have no legal rights. I am heartbroken. I raised this child as my own son for almost five years. I love him and we are very bonded. Don't I at least have a right to visitation?

ANSWER:

While I do not have sufficient information to give you advice about your particular situation, I can give you some general information.

Under certain circumstances, a non-parent does have visitation rights under Arizona law. The non-parent visitation law is codified in Section 25-409 of the Arizona Revised Statutes. Under the statute, a non-parent may be awarded visitation rights if she/he can show that the visitation is in the child's best interests and that any of the following is true:

1. One of the legal parents is deceased or has been missing at least three months.

2. The child was born out of wedlock and the child's legal parents are not married to each other at the time the petition is filed.

3. For grandparent or great-grandparent visitation, the marriage of the parents of the child has been dissolved for at least three months.

4. For in loco parentis visitation, a proceeding for dissolution of marriage or for legal separation of the legal parents is pending at the time the petition is filed.

In a situation like yours, where the child's legal parents were never married to each other -- and where a partner acted in the capacity of a parent (and, therefore, stands "in loco parentis" to the child - the non-biological parent does, indeed, have a valid claim for visitation under Arizona law.

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.

QUESTION:

My niece and nephew reside with their mother in Arizona. I live out of state. I am concerned that my sister is not taking care of the children and that they are in an unhealthy environment. Is there a way that I can have the children come to live with me?

ANSWER:

I do not know the details of your particular situation, so it is impossible for me to give you specific advice. However, I can say that, in general, there are a number of approaches to a problem like yours. Guardianship in Probate Court is one. The easiest solution is if a parent is willing to give guardianship of the children to a family member. Guardianship, however, is revocable by the parent. Custody (now called "Legal Decision-Making") in Family Court is another approach. Under certain limited circumstances, Arizona allows for a third party non-parent to obtain custody of children. The circumstances which justify third party custody are contained in Arizona Revised Statutes, Section 2-409. This is a more permanent approach than a guardianship. Dependency in Juvenile Court is a third approach. This involves contacting Child Protective Services (CPS) and having that agency investigate the family. If CPS believes that the children are in jeopardy, a caseworker can remove them from the home and file a dependency action in Juvenile Court. If the judge determines the children are dependant under the terms of the law, then the State will take over and place them in whatever environment it deems best, which could include placement with another family member, such as a grandparent, aunt or uncle - or the children could be placed in a foster home or a group home. These placements are often temporary, since the goal of CPS is to reunite the children with their parent. If the parent follows the case plan and can ultimately assure the judge that he or she will properly care for the children and keep them safe, the children will be returned to the home.

At this point, I do not have enough information to be able to guide you in deciding which route is best to take. You would be well-advised to consult with an attorney to help you understand your options.

QUESTION:

At what age is a child allowed to make a decision regarding which parent they wish to live within the state of AZ. Also, can a child petition the court without a lawyer?

ANSWER:

A minor child never has unfettered discretion to choose the parent that she or he wants to live with; however, a judge will consider the wishes of the child, especially if it believes that the child is of suitable age and discretion to have a mature opinion. It is extremely rare for a child to testify in court, or even for a judge to speak to a child in chambers (outside of the courtroom). Instead, the judge is more likely to appoint an expert (such as a psychologist) to interview the child and make a written recommendation to the Court as to what living arrangement would be in her or his best interest.

It is possible for a child to petition the court regarding a parenting time arrangement. It would be necessary, however, for the minor to be appointed a "best interests" attorney or guardian ad litem to speak on her or his behalf.

QUESTION:

My husband is in the military and his child’s mother is keeping him from me and my husband’s family. What can we do?

ANSWER:

Thanks for writing. Children need all the love and support they can get. There are times when a parent, for petty reasons, will attempt to cut a child off from someone he or she is close to -- such as a step-parent or a grandparent. When that happens, the parent is thinking about his/her own selfish interests -- not the child's best interests -- and it could result in long-term harm to the child.

Fortunately, Arizona law provides a remedy. Arizona Revised Statutes (A.R.S.), Section 25-409 provides that "a person other than a legal parent may petition the superior court for visitation with a child." If the requirements of the statute are met, the Court can grant visitation to a step-parent, a grandparent or great-grandparent, or a person who has acted as a parent to the child for a substantial period of time.

Further, Arizona law provides protection for a parent who is in the military and deployed. A.R.S., Section 25-411(G) provides that "If a military parent receives military temporary duty, deployment, activation, or mobilization orders that involve moving a substantial distance away from the military parent's residence or that otherwise have a material effect on the military parent's ability to exercise parenting time, at the request of the military parent, for the duration of the military parent's absence the court may delegate the military parent's parenting time, or a portion of that time, to a child's family member, including a stepparent, or to another person who is not the child's parent but who has a close and substantial relationship to the minor child if the court determines that is in the child's best interest."

Therefore, it is possible that the family of a parent in the military may be able to have contact or "parenting time" with a child, even over the objection of the child's mother.*

QUESTION:

Would Arizona recognize a common law marriage that is recognized as a marriage in Canada?

ANSWER:

Arizona Revised Statutes, Section 25-112 (A) provides that "Marriages valid by the laws of the place where contracted are valid in this state, except marriages that are void and prohibited by 25-101.

Section (B) states that "Marriages solemnized in another state or country by parties intending at the time to reside in this state shall have the same legal consequences and effect as if solemnized in this state, except marriages that are void and prohibited by 25-101.

Section 25-101 deals with relationships which amount to incest, and same sex marriages (how they can lump those two together is beyond me). But the point is that common law marriage is not among the marriages that would be considered void under Arizona law.

Arizona courts have consistently ruled that absent compelling public policy to the contrary, the validity of a marriage is generally determined by the law of the place of marriage.

Therefore, if common law marriage is legal in Canada then a common law marriage between Canadian citizens would be considered valid in Arizona.

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 divorce, legal decision-making regarding children, 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 a teenage child that would like to live with me. I was divorced a few years ago, and although I have joint custody the Decree designates the other parent as the primary residential parent. Do I have to go to court? And do I need a lawyer to help me change my child's residence?

ANSWER:

Thanks for writing. Modifying a court order and convincing a judge to change the residence of a child is not necessarily an easy task, especially if the other parent is against the change. An informal agreement between the parties to change a child's residence is not legal or binding, and either party can reverse course and insist on following the "old" arrangement at any time. Therefore, to legally change a child's residence, you will need a court order.

While you have the choice to represent yourself, it is wise to use an attorney since you may be unfamiliar with the procedural rules that must be followed in presenting a case to the Court. Lawyers are trained in the law and the rules of procedure, and have experience in putting together a persuasive legal argument. So, obviously, it is best to use an attorney for a matter like this, if you can afford one. If you feel you cannot afford to retain an attorney for full-time representation there are other less expensive alternatives, such as hiring an attorney on a "limited scope" basis to prepare a document for you, or appear at a particular court hearing on your behalf; or you can schedule appointments with the attorney for legal consultations on an as-needed basis, to help you understand the process and prepare for trial. Whichever path you choose, an attorney can help you.

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.

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. For more on our firm, take a look at our blog at www.garyfranklawblog.com, or check us out on Facebook, Twitter, and Linkedin.


QUESTION:

I recently married my husband. In his previous marriage, he and his wife had incurred a debt. Their divorce decree required his ex-wife to pay the debt, but she defaulted and the creditors have now gone after us and obtained a default judgment. The creditor is claiming that this is our community debt. I am now facing a wage garnishment. What can I do?

ANSWER:

Thanks for writing. It is impossible for me to give you legal advice pertaining to your particular case without knowing more of the facts. However, I can give you some basic information regarding premarital debts.

Arizona Revised Statute, Section 25-215(A) provides that "the separate property of a spouse shall not be liable for the separate debts or obligations of the other spouse, absent agreement of the property owner to the contrary."

Section B of the same statute states that "the community property is liable for the premarital separate debts or other liabilities of a spouse . . . but only to the extent of the value of that spouse's contribution to the community property which would have been such spouse's separate property if single."

This means that if a husband has a separate premarital debt and later remarries, the creditor cannot go after the new wife's separate property. The creditor can go after the community property belonging to Husband and his new wife, but only to the extent of Husband's contribution to the marital community that would have been his separate property if not married.

This means, for instance, that the creditor can garnish the husband's wages, but he cannot garnish the new wife's wages.

In order to obtain a judgment against the marital community the creditor must file a law suit joining both parties (the husband and his new wife); and the new wife is allowed to dispute the debt and Husband's contribution to the community property.

If Husband's divorce decree ordered the former wife to pay the debt, then Husband can file a lawsuit against the former wife asking that she be required to reimburse him for the monies he was forced to pay to the creditor. He may also have a claim for attorney fees against his ex-wife.

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.


QUESTION:

My child’s father is in prison and the girlfriend has filed a petition for "in loco parentis" custody. My child hasn't had overnights in their house in three years, and hasn't been over there at all in more than a year. Can the girlfriend be awarded custody?

ANSWER:

If the father's girlfriend is asking the court to award her custody (now called "legal decision-making" and "parenting time") then she is going to first have to prove that she is deserving of "in loco parentis" status; meaning that she has been treated as a parent by the child and has formed a meaningful relationship with the child for a substantial period of time. Next, the girlfriend will have to demonstrate that it would be significantly detrimental for the child to remain in your care.

There is a presumption that awarding "custody" to a legal parent (you) is in the best interests of the child. The girlfriend could only overcome this presumption if she could prove, by clear and convincing evidence, that keeping in the child in your custody would not be in the child’s best interests. This could be a very difficult mountain to climb, especially since the girlfriend hasn't seen the child in a year. If a child is thriving in your care, then it would be extremely difficult for anyone to convince a judge to change custody on an "in loco parentis" basis.

If the girlfriend asks for visitation, instead of "custody," there is a lesser standard, but she would still have to prove that it is in the best interests of the child to have an ongoing relationship with her, and she will have to demonstrate the applicability of other factors listed in Arizona Revised Statutes, Section 25-409(C) and (E). This will be no easy task.

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 http://www.garyfranklawblog.com/.


QUESTION:

I have a 15 year old son who lives with his father, who is the custodial parent. My son does not want to continue living with there, since the environment at the father’s house is not a good one. My son wants to live with me. What I want to know is: How old does a child have to be in order for a judge to consider his wishes as to where he will live?

ANSWER:

What you're talking about is now called a modification of legal decision-making authority (formerly "custody") and parenting time. At 15 years old, your son is old enough for the Court to consider his preferences. However, it is unlikely that a judge will actually talk to your son, or that he will be allowed to testify in court. In many instances, the judge will order a Family Assessment or Custodial Evaluation, and appoint an expert (probably a psychologist) to interview your son, and also both parents, and make a recommendation to the Court. If a parent disagrees the expert's recommendation, he or she can argue the matter at trial, at which time the parties will have the opportunity to present their cases. At the trial, the judge will consider the expert's report and recommendations, the testimony of the parties and witnesses, and the evidence presented. The judge will then make a final decision in the form of an Order, which will spell out where the child will live, what the parenting-time arrangement will be, and which parent has legal decision-making authority.

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 advice that is more specific to your own case, you should talk to a Family Law attorney.

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. For more information on our firm, take a look at our web site: www.garyfranklaw.com, or our Blog at http://www.garyfranklawblog.com/.

You can also find us on Facebook at https://www.facebook.com/pages/Gary-J-Frank-PC-Arizona-Custody-Family-Law-Attorney/131145493607872?ref=ts&fref=ts

And Twitter: https://twitter.com/AZCustodyAtty


QUESTION:

I have a friend who filed a temporary emergency custody order without notice and it was denied. Do you have any advice about what he might have done wrong?

ANSWER:

It is impossible for me to tell you why this particular motion was denied, but I can tell you that, in general, emergency custody motions without notice are not favored by the courts. Judges are very hesitant to grant a motion involving custody unless both parties have the opportunity to appear and present their sides of the story. If a judge believes that the children are in imminent danger of being harmed, a motion without notice could conceivably be granted -- but those are rare instances and, even then, the judge would set an evidentiary hearing for as soon as possible.

It may be that the evidence your friend presented was not compelling enough to convince the judge that the children were in imminent danger. It may have been better for your friend to have filed a custody motion and asked the court to set a hearing on an expedited basis. (I can't really say for sure, since I do not know the facts of the case.)

If your friend would like a legal consultation, I'd be happy to provide one. The consultation will not be limited to an hour. If we need more time, I will provide it at no extra charge. At the consultation, I will ask many questions so that I can understand the situation, the facts of your friend's case, and what he would like to accomplish. Then we will discuss the law, and I will give him an understanding of his legal rights. I will also describe how the court process works; and we will examine both litigation and out-of-court alternatives, such as mediation. Finally, I will provide a "game plan," so that your friend will know how to proceed. By the end of our meeting, your friend will have a better understanding of the law and how to protect his legal rights; and I will have given some ideas, some options, and a game plan.

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 questions are hypothetical, and the answers 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:

My stepson is 12 years of age. I've taken care of him since he was a young child. His biological mother lives out of state. I live in Arizona. I recently broke up with his biological father, who now wants to move to across the country with my step-son. I am the only mother this child has ever known and he wants to live with me. Do I have any legal rights?

ANSWER:

Yes, you do have legal rights as a step-parent. Under Arizona law (A.R.S., Section 25-415) you may have the right to visitation with your step-son, or even custody, depending on the circumstances. Of course, the standard the Court uses for giving a step-parent custody is greater than it would be for giving her visitation.

In general:

To be awarded visitation with your step-son, you would have to show that you acted as a parent to him (this is known as "in loco parentis") and that it would be in his best interests to have visitation with you; and that any one of the following are true: (1) One of his legal parents is deceased or has been missing at least three months; (2) His legal parents are not married to each other; or (3) There is a pending proceeding for dissolution of marriage or for legal separation of the legal parents at the time the petition is filed..

To be awarded custody your step-son, you would have to prove all of the following: (1) You have acted as a parent to him; (2) It would be significantly detrimental to him to be placed in the custody of either of his living legal parents who wish to keep him; and (3) The court has not entered a custody order within the past year. (Note: The court can make an exception to this last factor if child's environment with his legal parent may seriously endanger his physical, mental, moral, or emotional health)

Additionally, for a step-parent to be awarded custody, you would have to show that one of the following applies: (1) One of the legal parents is deceased; (2) The child's legal parents are not married to each other at the time the petition (for step-parent custody) is filed; or (3) There is a pending proceeding for dissolution of marriage or for legal separation of the legal parents at the time the petition for step-parent custody is filed.

Arizona law states that there is a presumption that placing a child with his legal parent would be in his best interests; however, a step-parent may overcome that presumption by showing (by "clear and convincing evidence") that placing the child with his legal parent is not in his best interest.

It appears that you might be able to make a claim for step-parent visitation, or possibly even custody. However, I do not know enough about your particular case to be able to tell you what your chances are of obtaining such an award. In order to make that determination, I would need to be able to sit down with you and discuss your family history in detail. Once I am able to better understand the facts of your case, I can give you proper legal advice.

I would be happy to meet with you for a consultation in my office, if you like. The consultation will not be limited to an hour. If we need more time, I will give it to you at no extra charge. At the consultation, I will ask you many questions so that I can understand your situation, the facts of your case, and what you would like to accomplish. Then we will discuss the law, and I will give you an understanding of your legal rights. I will also describe how the court process works; and we will examine both litigation and out-of-court alternatives, such as mediation. During the course of the consultation, we will talk about step-parent visitation and custody (now called "legal decision-making" & "parenting time"). Finally, I will give you a "game plan," so that you will know how to proceed.

By the end of our meeting, you will have a better understanding of the law and how to protect your legal rights; and I will have given you some ideas, some options, and a game plan. Our charge for an in-office consultation is $350, payable at the time of the meeting.

If you would like a legal consultation, please do not hesitate to give me a call or send me an email. I'd be happy to help you.

I look forward to hearing from you.

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 questions are hypothetical, and the answers 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:

We were married 27 years, together 29. Have been separated 2.5 years now (not legally). We get along fine, but it's time to divorce. He has been giving me money since we have been separated. How much can I ask for, and for what period of time?

ANSWER:

Spousal Maintenance, known in many other states as "Alimony," is the greyest of grey areas in Arizona Family Law. It is up to the judge to decide whether an award of alimony would be appropriate, based on an examination of the facts of your particular case. In making her/his decision, the judge will consider the factors listed in Arizona Revised Statutes, Section 25-319(A). Factors in that section include the length of the marriage; the age of the spouse seeking spousal maintenance; whether that spouse is able to be self-sufficient through employment; whether she/he has sufficient property to provide for her/his reasonable needs; and whether she/he is caring for a child whose age or condition makes it difficult or impossible to work. If the judge determines that one or more of the above factors applies, then spousal maintenance may be awarded.

Once the decision has been made to award spousal maintenance, the judge will then look to section B of the statute. The problem is that there is nothing in Section B that specifically tells the Court how much spousal maintenance to award, or for how many years it should be paid. Some of the most important factors in the statute include: The parties’ standard of living; how long they have been married; the comparative earning abilities of the parties; each party’s financial resources; the physical and emotional condition of the spouse seeking maintenance; whether the spouse seeking maintenance contributed to the other’s educational expenses; whether she/he contributed to the other’s career and earning ability; whether she/he reduced her/his own income or career opportunities for the benefit of the other spouse (for example, staying home and raising the children). The court will also consider the money the spouse seeking maintenance will receive in the divorce, and how much it will cost that spouse to obtain health insurance.

Most spousal maintenance awards are considered "rehabilitative." In other words, they are made for the purpose of giving the "needy" spouse "the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment." In rare cases, the court will award a spouse indefinite, or "lifetime" spousal maintenance.

Unlike the child support calculator, where you input data and it pops out the amount to be paid, there is absolutely nothing in the spousal maintenance statute that tells the judge how much the spousal maintenance payment should be -- or for how long it should be paid. Thus, the final result will depend on how each judge views the facts, and how he or she applies the statutory factors. This leaves the door open for wide variations in spousal maintenance awards.

The bottom line is this: It is important for a person seeking spousal maintenance to present a solid case using a "needs-based" analysis. Thorough preparation, good organization, and a persuasive presentation will give you the best chance for success. This is one area of law where a strong, experienced attorney can make an enormous difference.

I have written extensively about spousal maintenance on my Blog. You can see my most recent blog post at http://www.garyfranklawblog.com/search/label/Spousal%20Maintenance .

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.

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. For more information on our firm, take a look at our web site: www.garyfranklaw.com .


Question

False Accusations of child abuse:

What can I do to protect my 2yr old from her father? He is sending me text messages accusing my brother of "touching my daughter", because he discovered her area had a diaper rash. This rash has been diagnosed & prescribed medication by her DR. Her DR also recommended that she see a behavior therapist because her thumb sucking has gotten worse since she has been seeing her father consistently with our parenting plan that was in effect Nov. 2011. She has asthma & he smokes as do his parents whom he lives with. I have kept a "journal" of all this since Nov & now I am very concerned for her safety with him. Can anyone help me & my 2yr old???

Answer:

A false allegation of child abuse can lead to serious repercussions for the person who makes it. Judges take allegations of child abuse seriously and do everything in their power to protect the child. A false accusation muddies the waters and makes the job of protecting children even more difficult. That is why a false allegation of child abuse is so insidious. For a judge, there is nothing worse than a person who lies about a child having been abused. In the end, it can lead to the accuser losing custody and being criminally prosecuted for filing a false police report.

The Court will base its ultimate finding on the evidence. This includes reports of doctors, therapists, CPS, or any other person or agency who becomes involved. A journal can also be used as evidence and considered by the Court.

If you believe that a person is making a false claim of child abuse, you should thoroughly investigate the allegations and, if you feel certain that they are false, then you should take immediate action to prevent it, which might include a cease-and-desist letter from an attorney.

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 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 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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