ARIZONA CUSTODY LAW UPDATE – IS ASSUMPTION OF EQUAL PARENTING TIME AND DECISION-MAKING AUTHORITY UNFAIR TO CHILDREN?

  In 2012 I wrote an article on our law firm’s blog entitled “Say Goodbye to Custody,”, in which I discussed the brand new, and highly debated, revisions to the Arizona Family Law statutes. These laws, which guide the Court in making custody decisions involving children, have given rise to an assumption of equal parenting time and decision-making authority that has become the starting point for the Court’s analysis in every contested custody case. In my opinion, this approach hurts children more than helps them, and is unfair to both mothers and fathers. In this article, I’ll explain why.

Among the changes to the law were the following:

  • The word “custody” was replaced with the terms “Legal Decision-Making” and “Parenting Time.” (A.R.S. §25-403)
  • A provision was added providing that the court shall adopt a parenting plan “that provides for both parents to share legal decision-making regarding their child and that maximizes their respective parenting time.” (A.R.S. §25-403.02)
  • And in determining custody, whereas the Court was previously required to consider which parent had historically been the primary caregiver for the children, that was removed from the list of factors in the statute and replaced with a requirement for judges to consider: “The past, present, and potential future relationship between the parent and the child.” (A.R.S. §25-403 [1], Emphasis added.)

At the time, there was much discussion as to what these changes would mean. Some experts believed that the revisions were mostly “semantics” and that not much would change. Others argued that the revisions would lead to a “sea-change” in how the courts determine custody (now called Legal Decision-Making and Parenting Time) in the future.

Now, more than five years later, the answer is in. Has there been a big change? Yes. The change has been enormous. It is a seismic shift in the way judges determine parenting time and legal decision-making authority. And, in my opinion, the change is not necessarily a healthy one.

The law still provides that the “best interests of the child” standard should be applied when making “custody” and parenting time decisions, but today, many judges interpret the statutory changes as requiring them to start with the assumption that both parents should be given equal decision-making authority, and equal parenting time. And, in many cases, that trumps the best interests of the child. It wasn’t that way before the law was changed. But, increasingly, it is the reality today.

Why do I think this is not a healthy approach? Well, I’ll get to that in a minute; but before I do, I need to explain a few things: The latest studies show that children do better, and are happier, when both of their parents are loving, active and involved. When a divorce or breakup occurs, the courts should work to make sure that loving, active and involved parents share in decision-making, and that the children get to spend plenty of time with both of them. In fact, Arizona law provides that:

It … is the declared public policy of this state and the general purpose of this title that absent evidence to the contrary, it is in a child’s best interest: (1) To have substantial, frequent, meaningful and continuing parenting time with both parents; (and) (2) To have both parents participate in decision-making about the child.” (A.R.S. §25-103) 

So that’s the policy. And it’s true that equal decision-making and equal parenting time are good for children when both parents are loving and capable caregivers. But here’s the catch: Not all parents are equal. Some parents have never been meaningfully involved in their children’s lives, and never will be. And I’m not necessarily talking about “bad” parents. There are parents who love their children but are just too busy, or maybe not interested enough, to be involved. If a parent isn’t available to spend time with the children; and rarely or never attends doctors’ appointments, or school functions, or extracurricular activities; and if that parent doesn’t know the children’s friends; and isn’t tapped into their children’s likes and dislikes, their strengths and weaknesses; their abilities, or disabilities; their medical conditions; etc., then how can that parent be trusted with making critically important decisions for those children? – But all too often today, these types of parents are awarded 50/50 parenting time and equal decision-making authority. And why? – Because of an unwritten assumption that a parent is entitled to it under Arizona law.

This is where I think the new law, as currently interpreted, goes off the rails and can hurt children. It places “Parents’ Rights” ahead of “Children’s Rights.” It assumes that in every case the Court should start its analysis with the proposition that both parents will receive equal parenting time and decision-making authority. And, by doing this, the best interest of the child has been made secondary to the best interest of the adults. Proponents of the law will not agree with my opinion. They will point out that there is no legal presumption mandating equal decision-making and parenting time — but that argument rings hollow. Because while it is true that overcoming a legal presumption requires a higher level of proof than a mere assumption, there is often little difference between the two in actual practice.  Try explaining the difference to a mother or father who has always been the sole caregiver, but whose children will now spend half their lives with a parent who never changed a diaper, never got up with a baby at night, never took care of a sick toddler, or attended a parent-teacher conference, or a school play, or a Little League game.

Those favoring an assumption of equal parenting-time and decision-making will argue that the Court is still required to consider all relevant factors, and that while “equal” may be the starting point in the analysis, a judge can give a parent less time, or no decision-making authority at all, where it is deemed to be in the best interest of the child. And that is true. But I would remind them that Arizona law was also changed in a way that makes such an outcome less likely.

Arizona Revised Statutes, Section 403 contains a list of factors that the Court shall consider in determining Legal Decision-Making and Parenting-Time. Before the law was changed, that statute contained a factor which required a judge to consider whether a parent had historically provided primary care for the child. But that factor was removed from the statute and replaced with this: “The court shall consider all factors that are relevant to the child’s physical and emotional well-being, including . . . (1) The past, present and potential future relationship between the parent and the child.”

So now, in making the all-important decision on where the child lives and who will make major decisions, the judge is required to consider a parent’s unproven “potential.” Instead of giving primary consideration to which parent actually took care of the child throughout his or her life, the Court must give equal weight to the other parent’s “potential.”

But here’s the problem — How many people do you know who never lived up to their potential? How many athletes were top draft picks but never became stars? How many employees were promoted but never became effective managers or supervisors? — How many moms or dads were excited when their baby was born but never became active and involved parents? In my opinion, it is a huge mistake to emphasize “potential” over actual experience, or even to give it equal weight. Because past history is the best predictor of future behavior. Thus, by putting too much stock in “potential,” the danger of a bad outcome is evident. And in the end, when a father or mother is awarded equal parenting-time and decision-making authority and never lives up to his or her potential, it is the children who suffer.

Of course, there will be parents who were stay-at-home moms or dads during the marriage, but will have to work full time after the divorce – and the fact that both parents will now be working should be taken into consideration by the Court in formulating a parenting plan. In that sense, the other parent’s potential to become a competent caregiver would come into play. However, it should be just one of many factors the judge considers in determining what is in the best interest of the child.

Fathers’ rights advocates maintain that an assumption of equal parenting time and decision-making is necessary because mothers were previously favored in custody disputes. Hey, I’m a father, and nothing is more important to me than my children. And, yes, it is true that there was a time when mothers typically received custody of children. But that was during an era when women were faced with societal and social barriers that made it difficult for them to obtain a college education or executive-level employment, or even a decent-paying job, and which practically forced them to be “housewives” and stay-at-home caregivers of children. Today, many of those barriers have been knocked-down, and glass-ceilings are being shattered. Recent studies show that over sixty-percent of all college students today are women. This means that in the future more mothers will be the family breadwinners; and more fathers will become stay-at-home parents. Therefore, for a judge to make a blanket assumption of equal parenting time and decision-making authority is unfair to both Mothers and Fathers.

In Arizona and other states across the country, the growing trend in custody cases is to award the parents equal decision-making authority and parenting time. That’s not a bad thing, so long as the parents are equally involved in raising their children. The experts agree that it is best for children to have both parents actively involved in their lives, and that effective co-parenting helps to ensure that children will grow up to be healthy and productive adults. But to make custody decisions based on a simple assumption that both parents are equally capable – when they may not be – is a colossal mistake. One that can harm the children in the long-run.

The care of children is too important to make broad assumptions, let alone instituting legal presumptions, regarding decision-making and parenting time. In the real world, parents are not always equal caregivers. Sometimes the mother is the more responsible parent; sometimes it is the father who is the nurturer and is in a better position to provide for the children’s needs; and in many cases both parents are loving, capable caregivers who are willing to co-parent their children (that is, obviously, the best scenario).

Rather than making assumptions, the Court should start with a blank slate when crafting a parenting plan. The judge should carefully examine the capabilities of each parent, the factors contained in Arizona’s custody statute (A.R.S. §25-403), and all other relevant factors. The judge should take a close look at who has been the child’s primary caregiver, and also consider the potential future relationship between the parents and the child. But the needs of the child should always come first. By taking this approach the Court can ensure that the best interest of the child is protected.

 

At the Law Firm of Gary J. Frank P.C., both Gary Frank and attorney Hanna Juncaj are strong litigators and compassionate counselors. Gary Frank is a Family Law Attorney with over 30 years of experience as a litigator and mediator, which includes having acted in the capacity of a Judge Pro Tempore in the Maricopa County Superior Court; and serving on the Governor’s Child Abuse Prevention Task Force. Hanna Juncaj is a highly-skilled attorney with a passion for Family Law and children’s issues. She has extensive courtroom experience, and is also a certified mediator. In addition, Hanna is an active member of her County Bar Association. We handle Family Law cases in the areas of divorce, custody (now called “Legal Decision-Making and Parenting Time), relocation (move-away), division of property, spousal maintenance and child support, modification and enforcement actions, grandparent and non-parent rights, and all other matters pertaining to families and children. To learn more about our firm, check us out on Facebook, Linkedin-Gary Frank, and Linkedin-Hanna Juncaj. If you are in need of a consultation, please do not hesitate to call our office at 602-383-3610; or you can contact us by email through our website at www.garyfranklaw.com.   We look forward to hearing from you.

 

DOMESTIC VIOLENCE AFFECTS CUSTODY UNDER ARIZONA LAW

Nearly 20 people per minute are physically abused by an intimate partner in the United States, according to the National Coalition Against Domestic Violence (NCADV).[1]This equates to more than 10 million victims per year, both women and men.  Domestic violence harms individuals of all ages in physical, emotional, and even economic ways, but what many people don’t know is that it also affects custody of children.

Victims of domestic violence are protected by Arizona’s laws, which provide that all of the following constitutes domestic violence:

·       Sexually assaulting or causing serious physical injury to a family or household member
·     Attempting to sexually assault or cause serious physical injury to a family or household member
·      Making family or household members afraid that they are about to suffer immediate physical injury
·      Engaging in a pattern of abusive behaviors that are serious enough to permit a court to issue a protective order for the victimized parent or child

Acts that qualify as domestic violence can include threats, harassment, intimidation, stalking, unlawful imprisonment, trespassing, damage to property, kidnapping, photographing and secretly watching victims without their consent, physical assault, and many other things.  In our modern society, abuse can also be inflicted through electronic means, including the telephone and Internet.  Those protected under the law include current and former spouses, people who live together or used to live together, people who have a child together, relationships in which one of the partners is pregnant with the other partner’s child, people related by blood or marriage, children, and those who are or were in a romantic or sexual relationship.

Arizona has enacted statutes creating “domestic violence presumptions” in child custody cases, essentially stating that an abuser’s actions and future potential actions would be harmful to the child.  In other words, if the court finds that a parent committed acts of domestic violence against the other parent, then it is akin to abusing the child, and the judge must presume that giving custody to the abuser is not in the child’s best interests.  However, the presumption is “rebuttable,” and the court may decide that the perpetrator has overcome the presumption by evaluating the following factors:

·      Whether the perpetrator proved that being awarded sole or joint custody is in the child’s best interests
·      Whether the perpetrator successfully completed a batterer’s prevention program
·    If applicable, whether the perpetrator successfully completed alcohol or drug abuse counseling ordered by the court
·     Whether the perpetrator successfully completed parenting classes ordered by the court
·    Whether the perpetrator has committed additional acts of domestic violence against anyone else,

In determining which parent should have custody of the child, Arizona judges must consider the best interests of the child, which necessarily involves the contemplation of domestic violence.  Specifically, two of the factors that Arizona judges consider are (1) whether there has been domestic violence or child abuse and (2) whether either parent was convicted of falsely reporting child abuse or neglect. 

The bottom line is this:  In Arizona, a parent who is guilty of domestic abuse is less likely to get custody.  In fact, if there is evidence of domestic violence, parents cannot share joint legal custody.  In very serious cases where there is a pattern of child abuse, a petition can be filed asking the court to terminate a parent’s rights.  Termination means that a parent loses all rights to both the physical and legal custody of a child.

The best interests of the child—and the protection of the child—is the Arizona Court’s main priority. Although Arizona has created a presumption that it is harmful to the child, and not in his/her best interest for the perpetrator of domestic violence to have sole or joint legal decision-making authority, some cases still slip through the cracks.  Therefore, if you are a victim of domestic violence, it is important to seek legal advice to better protect yourself and your family.

Jacinda Chen & Gary Frank
      At the Law Firm of Gary J. Frank P.C., both Gary Frank and attorney Hanna Juncaj are strong litigators and compassionate counselors. Gary Frank is a Family Law Attorney with over 30 years of experience as a litigator and mediator, which includes having acted in the capacity of a Judge Pro Tempore in the Maricopa County Superior Court; and serving on the Governor’s Child Abuse Prevention Task Force. Hanna Juncaj is a highly-skilled attorney with a passion for Family Law and children’s issues. We handle Family Law cases in the areas of divorce, custody (now called “Legal Decision-Making and Parenting Time), relocation (move-away), division of property, spousal and child support, modification and enforcement actions, grandparent and non-parent rights, and all other matters pertaining to families and children. If you are in need of a consultation, please do not hesitate to call our office at 602-383-3610; or you can contact us by email at gary.frank@azbar.org, or through our website at www.garyfranklaw.com.   We look forward to hearing from you.   


[1]“Statistics.” National Coalition Against Domestic Violence. N.p., n.d. Web. 22 Feb. 2017. <http://ncadv.org/learn-more/statistics>

CO-PARENTING vs. PARALLEL PARENTING – WHICH IS BEST FOR YOU?

In every divorce involving legal decision-making and parenting time issues, parents must strive to keep the needs of the children as their #1 priority.  Children benefit most when they have relationships with both parents and tend to adjust better to divorce when:
·       They have healthy and happy relationships with both of their parents;
·       Parents don’t argue in the presence of their children;
·       Parents don’t place their children in the middle of disputes; and
·       Both parents are responsive to the needs of their children.
CO-PARENTING
“Co-parenting” describes a situation where the parents are not married, cohabitating or in a romantic relationship with one another.  Co-parenting often involves a parenting situation in which two separated or divorced parents communicate and work together to take care of their children.  Co-parenting can also describe a situation where, after a divorce, the child’s parents desire to maintain equal or equivalent responsibility for their children’s upbringing.  When successful, Co-parenting is a wonderful opportunity for children of divorce to still have access to both parents and retain a sense of family dynamic.  To come to a workable co-parenting arrangement, the parents must consider various factors, including:
·  What decisions need to be made? These commonly consist of decisions regarding education, extracurricular activities, medical treatment, sporting and social activities, religion, etc.
·      How will you make the decisions?  Will you meet in person to discuss decisions?  Will you communicate over the phone?  Email?  Text?
·     How will you share schedules?  How flexible do you want to be in scheduling?  When will the children see each of their parents?  What if one parent is late —  how will you deal with this?  Will the schedule remain the same as the children get older?
·     How will you handle discipline? How can you try to be on the same page when it comes to discipline? How will you communicate when a problem arises? Will each parent handle discipline on his and her own? If a child misbehaves at mom’s house, should he be disciplined by both parents or just mom?  If a child misbehaves in class, should she receive discipline from both parents or just the one she is returning home to?
·   What will happen in an emergency?  Have you provided your ex-spouse with all emergency contact information?  Will the parents notify one another before emergency medical treatment?
·      How will you handle disputes? If the parents cannot agree on a disciplinary issue, how will you deal with it? Is there a mutually-trusted family member or a friend who can help you discuss the matter? If the disagreement involves a medical decision, can you ask the doctor for guidance and advice? Or, if the dispute is an especially difficult one, will you seek the help of a professional mediator?
Because parenting involves a substantial number of decisions in all aspects of the child’s life, it is helpful to draw up a chart listing certain decisions and who should make them.  Here’s a brief example:
Who makes decisions regarding:
Mom
Dad
Together
HOUSEHOLD RULES & CHILDCARE
Allowances
Bedtime
Clothing
Grooming
Computer, software, and video game use
Television shows (which shows, what time)
Cell Phone, Computer, & Internet use
Meals
Toys
Handling behavior problems
RESIDENTIAL
Living situation
Transportation
SOCIAL LIFE
Dating
Driving
Friends
Sports & Social Activities
Sharing Cost of Activities
EDUCATION & MORAL TRAINING
Morals, values
Religion
Choice of Schools
Helping with homework
After school care
Extracurricular Activies &
Expense Sharing
HEALTH
Dentist
Doctor
Medication
Major medical issues
Psychological counseling, if applicable
Unfortunately, harmony cannot be achieved in every case despite both parents’ best efforts to cooperate.  When parents are unable to co-parent in a healthy, effective way that is in the best interests of their children — or when one of the parents refuses to cooperate — it can be a source of great conflict and stress for everyone involved. Many studies have found that most children of divorce grow up to be healthy, well-adjusted adults; however, children who are raised in corrosive, high-conflict parental situations are at risk to develop emotional problems that can last a lifetime. Sometimes, divorced or separated parents simply cannot work together, despite all their efforts. When that is the case, they should consider using a technique known as “Parallel Parenting.”
PARALLEL PARENTING
Parallel Parenting is a type of parenting arrangement that is best in situations of high conflict where parents have different parenting styles and can’t see eye-to-eye on even the most basic issues.  It is a form of co-parenting where a mother and father reduce the level of conflict through disengagement.  Specifically, they have limited direct contact with each other. And when they do communicate, it takes place in a more structured manner, such as through email.  Each parent sets rules for his/her own household (bedtimes, homework, TV or computer times, discipline, etc.), without concern that they may be different than the rules that are in place in the other parent’s household.  Some principles to keep in mind include:
·       Parents must never use their children as messengers to communicate back and forth;
·       All communication must be business-like in nature and relate to information relevant only to the children’s well-being;
·       Schedules should be shared via a calendar or in writing;
·       No changes to the parenting-time schedule should be made without written agreement.
Parallel parenting, if done the right way, can provide children of divorce or separation with the same sense of fulfillment and happiness as a healthy co-parenting relationship.  Because parallel parenting is normally employed when parents disagree with one another to the point that they cannot communicate effectively, those in parallel parenting arrangements should remember that their exes are their children’s parents and, for that reason alone, they deserve respect.  Keeping differences with one’s ex away from the children will open opportunities to move beyond divorce in the future.

 

Whether one decides to co-parent or try out parallel parenting, the main concern should always be what is in the children’sbest interests.

Gary Frank & Jacinda Chen

 

At the Law Firm of Gary J. Frank P.C., both Gary Frank and attorney Hanna Juncaj are strong litigators and compassionate counselors. Gary Frank is a Family Law Attorney with over 30 years of experience as a litigator and mediator, which includes having acted in the capacity of a Judge Pro Tempore in the Maricopa County Superior Court; and serving on the Governor’s Child Abuse Prevention Task Force. Hanna Juncaj is a highly-skilled attorney with a passion for Family Law and children’s issues. We handle Family Law cases in the areas of divorce, custody (now called “Legal Decision-Making and Parenting Time), relocation (move-away), division of property, spousal and child support, modification and enforcement actions, grandparent and non-parent rights, and all other matters pertaining to families and children. If you are in need of a consultation, please do not hesitate to call our office at 602-383-3610; or you can contact us by email at gary.frank@azbar.org, or through our website at www.garyfranklaw.com.   We look forward to hearing from you.

 

SAME-SEX FAMILY LAW — WE CAN PROTECT YOUR INTERESTS

Our attorney, Gary Frank, has long been a staunch supporter of civil rights, including marital rights for the LGBT community.  Now that same-sex marriage is finally a reality, it is important for gay and lesbian couples to understand their new rights, and how to protect themselves in the unfortunate event that a divorce or separation occurs.

We can help you preserve your property before a marriage takes place by preparing a Prenuptial Agreement.  And we can protect you throughout the divorceprocess by making sure you receive a fair division of property; and that spousal maintenance is awarded if a party is entitled to it under Arizona law.  If you have children, we will work hard to ensure that you come away with a legal decision-makingand parenting-time plan that is in their best interests and yours, and that child support is included. 

If divorce is inevitable, it is always a good idea to explore peaceful alternatives as a first option, before jumping headlong into an adversarial and often expensive litigation.  Mediation and collaborative divorce are two such options.  Mr. Frank is a compassionate mediator with many years of experience working with families, including LGBT couples. 

When acting as a divorce attorney, Mr. Frank encourages his clients to engage in mediation.  He will help you choose a top-notch mediator and he’ll guide you through the process, giving you the best odds of a favorable outcome.  But while mediation is often successful it does not always result in a settlement, and sometimes divorcing parties have no choice but to turn to the courts to resolve their issues.  In that scenario, Mr. Frank is a strong and experienced Family Law litigator who will fight to protect your interests.   


If you are in need of representation, or even if you’d just like a consultation to learn about your legal rights, please do not hesitate to contact us. You can reach the Law Firm of Gary J. Frank P.C. by telephone at 602-383-3610, or by email at gary.frank@azbar.org.  We’d be happy to help you.

THE POWER OF EMPATHY


You see, there’s this thing called “Empathy.”  And it’s a powerful force.  When I don’t see eye-to-eye with someone, I try very hard to understand why that person feels the way he does, and why his reality is so different from mine.  When I take that approach, I am usually able to comprehend the logic or at least catch a glimpse of where that person is coming from, even if I don’t agree with his or her reasoning or conclusions. 
Unfortunately, many people are unwilling or unable to see a problem through another person’s eyes.  Maybe they are afraid that doing so will, somehow, be a tacit admission that the other person is right.  Maybe they fear that conceding a point, even a small one, is tantamount to losing the debate.  Or maybe they’re just afraid of being wrong.  
But “Empathy” is not a weakness – it’s a strength.  Failing to consider a problem from the opposing point of view often leads to a stalemate and continued conflict.  Refusing to make even minimal concessions or reasonable compromises only assures that competing parties will never be able to bridge the gap and resolve their differences.  It can cause a small spark to become a raging fire.
When two people are going through a divorce, it’s a scary and emotional time in their lives.  They may wonder, “What’s going to happen to my children?” orHow can I protect theassets that I’ve worked my whole life to accumulate?”  It can feel as though the ground beneath themhas fallen away and they have nothing to hold onto.  Fear grips them.  And the fear morphs into anger.  They run out and hire the meanest, toughest attorneys they can find.  But they soon learn that their divorce litigation, which is an adversarial process to begin with, has only increased their fear and inflamed their anger.
In this state of mind, it is hard to make concessions.  It is difficult to put yourself in the shoes the other person (who, by now, may seem like an enemy).  But that is exactly what you need to do.  Because being able to view the situation through the eyes of that person will enable you to better understand their perspective – their fears, their insecurities, their unstated needs.  And that insight, along with a willingness to make reasonable concessions, might allow you to resolve your dispute amicably, and save thousands of dollars in the process.  
 
For instance, a father going through a divorce might be afraid that the mother is trying to take his children from him.  A wife who was a stay-at-home mom for many years might be afraid that she won’t be able to support herself after the divorce.  By trying to understand those fears, you are better able to address the problem.  Empathy also allows you control your own fear and insecurity.  You are less likely to be angry with your soon-to-be ex-spouse if you understand that his/her motives are not evil.  That person is just fearful, like you are.  
In the end, empathy enables you to comprehend the other party’s perspective, which may result in finding a solution that allows you to meet their needs without compromising your own.  


Gary J. Frank is an Arizona attorney and former Judge Pro Tem with over thirty years of experience in dealing with divorce, custody, parenting-time, and support issues in Family Court.  To schedule a legal consultation with Mr. Frank, you may contact us by email at gary.frank@azbar.org, or through our web site at www.garyfranklaw.com.

 The issues in this blog are provided for general informational purposes only and should not be relied on as legal advice in your particular case, nor should it be construed as forming an attorney-client relationship.  Every Family Court case is unique.  If you have a matter that appears similar to any of the scenarios that you read in this blog, 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 continually being enacted.  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.  

A GRANDPARENT CUSTODY CASE INVOLVING TWO STATES – WHO HAS JURISDICTION?

I was recently contacted by a grandparent who had the following question:  “I raised my grandchildren for several years.  My daughter went through treatment for drug abuse and later took the children back.  However, her addiction has returned and I am afraid that my grandchildren are now at risk.  She’s in California and I’m in Arizona.  I need to get custody of my grandchildren.  How can I do this from another state?”

This scenario presents a complicated legal issue involving not only a grandparent’s custody matter, but also a potential battle between states over which state has the jurisdiction (i.e., the power) to make the custody decision.

Grandparents in Arizona, and in other states, now have legal rights, including the right to visitation — and even the right to be awarded custody of a grandchild, under certain circumstances.  Arizona’s grandparent-rights law is contained in Arizona Revised Statutes, Section 24-409.  For a custody petition to be considered, the grandparents must stand “in loco parentis” to the child.  In other words, they must be able to show that they “stood in the shoes” of a parent by caring for the child for a substantial period of time.  (It may be sufficient to show that the child resided in the grandparents’ home with a parent, and the grandparents helped care for the child.)

Custody cases that involve two or more states are governed by a set of laws known as the Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA).  Nearly every state in the U.S. has adopted the UCCJEA.  The law provides uniformity and helps the competing courts determine which state will preside over a custody dispute.  Under the UCCJEA, the state where the child has lived 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” will be the state that has “jurisdiction,” and it is where the custody matter will be litigated.  However, the Court considers a number of factors before determining jurisdiction, including which state has the “most significant connection” with the child (i.e., where schools, doctors, family members and friends who are familiar with the child’s needs, etc., are located).  The Court also considers 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 believe that, under the circumstances (and considering the statutory factors), another state is the more appropriate forum.

The bottom line is that grandparents do have rights.  And ultimately, in making a custody decision, a judge is guided by what she/he believes will be the best interests of the children.

In a complicated situation involving a potential conflict between two states over custody jurisdiction, it helps to have a strong, experienced attorney on your side.

This information is provided for general purposes only, and does not create an attorney-client relationship between the author and the reader.  Every Family Court case is unique.  If you have a matter that appears similar to any of the scenarios that you read in this blog, 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 statement of the law in this blog, since the law may be different today than it was when the blog post was written.

Our attorney, Gary Frank, is a grandparents’ rights advocate.  In addition to being a litigation attorney and a professional Family Law mediator, Mr. Frank has acted in the capacity of a Judge Pro Tem in the Maricopa County Superior Court.  This has given him an understanding of the inner-workings of the court, and a unique perspective  that most attorneys lack.  If you are in need of a consultation regarding any area of Family Law, please do not hesitate to give our office a call today at 602-383-3610; or feel free to contact us through our web site at www.garyfranklaw.com; or by email at gary.frank@azbar.org.   We look forward to hearing from you.

HOW A CHILD’S VOICE CAN BE HEARD IN A CUSTODY OR PARENTING TIME DISPUTE

I am frequently asked at what age children can decide where they’d like to live, and whether or not they want to spend time with 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.  But although children are not given the right to make these crucial choices, their voices can be heard — and the courts are listening.

In determining parenting time and legal decision-making authority (formerly called “custody”), the courts in Arizona are guided by the law as set out in Arizona Revised Statutes, Section 25-403.  When children get into their teens and closer to their 18th birthday, the courts will increasingly consider their desires regarding parenting time and where they want to live.  But judges must be careful, because although many teens are logical and mature and have good reasons for their point of view, others are immature and unable to make well-reasoned decisions.  For example, some children may simply want to live in the household of the parent who has less rules and supervision; or they might have been unduly influenced by a parent. 

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.  For instance, the judge can order the parents to participate in a Parenting Conference, or a Family Assessment; or the judge can order a Custodial Evaluation (either limited or full-scale).  The custodial evaluation process results in an in-depth investigative report and recommendation to the Court, and it may include psychological testing.   The purpose of each of the above-options is to assist the Court in developing the best custody and parenting plan for the children.  In doing the interviews, the experts will also be on the look-out for signs that a parent is coaching the children and/or attempting to alienate them from the other parent.

In high-conflict cases, 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 interests of the children.  Most judges are not mental health or child development experts, and they don’t have sufficient time to do an in-depth investigation of their own. Therefore, they utilize professional experts to help them determine the facts of the case, and the needs of the children.  In this way, the children’s voices can be heard. 

Gary J. Frank is an Arizona attorney and former Judge Pro Tem with over thirty years of experience in dealing with custody and parenting time issues in Family Court.  The issues in this blog are provided general informational purposes only and should not be relied on as legal advice in your particular case, nor should it be construed as forming an attorney-client relationship.  Every Family Court case is unique.  If you have a matter that appears similar to any of the scenarios that you read in this blog, 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 continually being enacted.  
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.  To schedule a personal consultation with Mr. Frank, you may contact us by email at gary.frank@azbar.org, or through our web site at www.garyfranklaw.com.



THE PEACEFUL PATH

Sometimes you have to get tough.  Sometimes you have to stand your ground and fight.  That’s when you need a strong lawyer.  But the strong lawyers, the truly excellent ones, will tell you that in most divorce cases it is best to start out by exploring the peaceful path.

Great lawyers will tell you that you can’t “win” a divorce in the same way you would win a business dispute over a contract.  In a business litigation, where someone has breached a contract, a judge or jury could award you the entire value of the contract.  Winning means getting the whole thing.  But divorce litigation is different.  In a divorce, a couple is dividing property.  They are divvying up property that they’ve accumulated over the course of their entire marriage.  The law provides that community property is to be split “equitably.”  In other words, each side will be given approximately equal portions.  In a divorce, you can’t win all the property.  You’re only going to come away with about 50%.  So, why not try to negotiate a fair resolution rather than battling it out in court?

To put it another way:  Imagine that all your community property is baked into a pie.  The judge is going to divide that pie.  And even if your share turned out to be more than half, it’s still going to be less than what you had when you were married – because when you were married you had the whole pie.  So, what’s the wisest thing you can do?  The answer is simple:  Make sure to give your attorneys the smallest slice of the pie.  Here’s how it works:  The more you fight, and the longer the litigation drags out, the larger the attorneys’ slice of the pie becomes.  But if you are able to successfully negotiate a fair division of your assets rather than slugging it out in court, you can reach a settlement early and amicably — and keep more of the pie for yourself.  You can do that by getting rid of the “I Win/You Lose” mentality.  You can do it by exploring mediation, settlement conferences, or other forms of dispute resolution.  You can do it by controlling your emotions and treating the division of property like a business negotiation rather than a tug of war between two angry people.  You can do it by being reasonable, and being willing to compromise.  That’s not being weak.  It’s being smart.

Too often, when divorcing couples become involved in a long, protracted litigation over property, the only winners are the lawyers.  That’s why you need a strong lawyer, someone who is looking out for your best interests.  A lawyer who knows how to fight, but is willing to help you explore the peaceful path.

Gary J. Frank is a Family Law Attorney, a litigator, and a mediator with over thirty years of experience in dealing with divorcepaternity, custody, and parenting issues. For many years he acted as a Judge Pro Tempore in the Maricopa County Superior Court, which gave him an insight into the inner workings of the courts that many attorneys lack.  In addition to representing Family Law clients in litigation, we are also willing to help people by working with them on a Limited-Scope or Consultation-Only basis.  Our office is located in the Biltmore area of central Phoenix, with satellite offices in Scottsdale and Paradise Valley, Arizona.  We can be reached by telephone (602-383-3610); or by email at gary.frank@azbar.org.  You can also reach us through our website at www.garyfranklaw.com.  If you are in need of a consultation regarding any area of Family Law, contact us today.  We’d be happy to help.

WHEN IT COMES TO FAMILY LAW, “THESE ARE THE GOOD OLD DAYS”

People seem to always pine for the “good old days.”  And, sure, there is plenty to complain about today, but America in 2015 is far more tolerant, compassionate, and evolved than at any time in U.S. History — or maybe even human history.

When I was growing up in the 1960’s . . . 

 Cohabitation was scandalous;

A female who had sex before marriage was a “slut” (but the same was not true for a male – after all, he was just being a guy);

Children born out of wedlock were referred to as “bastards” and were shunned by society through no fault of their own;

Interracial marriage was against the law in most states.  An interracial couple could be arrested, convicted, and sentenced to prison for the mere “crime” of falling in love and getting married;

Bi-racial children were shunned, too;

Interfaith marriage was considered an abomination – couples who married outside of their faith were often excommunicated from their church and disowned by their families;

Gay marriage was not even something people could dream about.  Sodomy laws were in place in every state, making homosexuality illegal.  And those laws were used to prosecute gays.  “Coming out of the closet” meant risking becoming the victim of societal abuse, both legal and physical;

Divorce was not just frowned-upon – the law made it almost impossible to get out of a bad marriage.  It was not enough to show that the parties were no longer in love or that they found it impossible to live together.  To obtain a legal divorce required a husband or wife to prove sufficient “grounds,” such as abandonment, abuse, or infidelity.  Women often came away from divorce impoverished, regardless of the lifestyle they enjoyed during the marriage.  And to be a divorced person, or a child of divorce, was seen as a public embarrassment;

Mothers were almost always awarded sole custody of the children by the divorce court.  And regardless of how active and involved a father might have been in his children’s lives – he was given only “visitation”;  

Domestic violence was rampant, as it is today.  But, back then, it was considered a parent’s right to keep his or her children in line by the use of corporal punishment, however severe.  And if a man chose to abuse his wife it was viewed as a family matter, and nobody else’s business;

Women had few employment opportunities.  “A Woman’s Place is in the Home” was not just a saying – societal rules were built to make sure that women remained economically helpless and subservient.  Universities had quotas for women and many jobs were off-limits, including executive-level positions in banks and corporations.  Women, no matter how capable and intelligent, were offered employment mainly as factory workers, teachers, administrators, or secretaries.  There was no “glass-ceiling” for women — instead, the ceiling was made of concrete.   So were the walls.  To break through those barriers took a herculean effort;  

For a father to stay at home and take care of the children was unheard of — it was not considered “manly.”  Fathers were locked into the role of “Provider.”  And being the sole source of income for the family was a responsibility that left little time for dads to be loving, nurturing parents to their children. 



Looking back on the “idyllic days “of the past is a fantasy.  The “good old days” weren’t really so good.  In fact, in many ways, life has never been better than it is right now.  

Want to know the truth?   These are the “good old days.”

Gary J. Frank is an attorney and mediator with over thirty years of Family Law experience in dealing in divorcecustody, and parenting issues. For many years he acted as a Judge Pro Tempore in the Maricopa County Superior Court, which gave him an insight into the inner workings of the courts that many attorneys lack.  In addition to representing Family Law clients in litigation, we are also willing to help people by working with them on a Limited-Scope or Consultation-Only basis.  Our office is located in the Biltmore area of central Phoenix, with satellite offices in Scottsdale and Paradise Valley, Arizona.  We can be reached by telephone (602-383-3610); or by email at gary.frank@azbar.org.  You can also reach us through our website at www.garyfranklaw.com.  If you are in need of a consultation regarding any area of Family Law, contact us today.  We’d be happy to help.

“COUNCIL ON SHARED PARENTING” CONCLUDES THAT SHARED PARENTING IS GOOD . . . REALLY?


What’s wrong with this picture? . . . 

The First International Conference on Shared Parenting” has published a “Research Consensus Statement” following a July, 2014 conference organized by the International Council on Shared Parenting (ICSP).  In their report, the experts concluded that shared parenting is in the best interest of the majority of children whose parents divorce.  Psychology Today refers to the study as “groundbreaking” . . .
Really?  Should be we surprised that the “International Conference on Shared Parenting” would conclude that shared parenting is a good thing?  Isn’t that a little like the “Conference for Legalization of Marijuana” concluding that marijuana should be legalized?  It doesn’t mean they’re wrong.  It’s just that their conclusions are . . . well . . . not all that astounding.  I mean, hey, is the Council on Shared Parenting going to say that shared parenting is harmful? 
I’m all for shared parenting.  But I also believe that in determining an appropriate parenting plan, the Court should make its decision on a case-by-case basis, without the use of blanket presumptions.  Where children are involved, a one-size-fits-all approach is not always wise.
This “groundbreaking” conference was organized by the “International Council on Shared Parenting” – that, in itself, could lead one to believe that the findings may have been tainted by bias. 

. . . Just saying . . . 

http://www.psychologytoday.com/blog/co-parenting-after-divorce/201407/research-consensus-statement-co-parenting-after-divorce


 The Law Office of Gary J. Frank has been a fixture in the Biltmore area of Phoenix, Arizona for over thirty years.  Gary Frank is a Family Law litigator, a mediator, and a former Judge Pro Tem.  Our firm handles a wide array of cases, such as divorce, domestic partnerships, custody, relocation, paternity, child and spousal support, division of property and businesses, modification and enforcement actions, grandparent and non-parent rights, and all matters relating to families and children.  If you are in need of a consultation, please do not hesitate.  Contact us today.  You can reach us by telephone at 602-383-3610, or by email at gary.frank@azbar.org, or through our website at www.garyfranklaw.com.  We’d be honored to help