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>

PARALLEL PARENTING CAN HELP HIGH-CONFLICT MOMS & DADS PARENT EFFECTIVELY

I’m going to tell you three things that every divorced parent should know:    

  • When a mom and dad are able to effectively co-parent following a divorce, their children have an excellent chance of growing up to be healthy and well-adjusted adults;
  •  On the other hand, children who grow up with parents who are openly angry and hostile toward each other can develop long-term emotional problems that will plague them throughout their lives and could adversely affect their own relationships.
  • But the good news is that parents who find it difficult or impossible to co-parent cooperatively can still raise happy, emotionally healthy children by effectively using a technique known as “Parallel Parenting.”

If you are divorced, it’s likely that you and your former spouse didn’t see eye-to-eye on a lot of things while you were married.  Communication is a difficult matter to begin with, and it doesn’t always get easier when a couple separates or divorces.  In a high-conflict parenting situation – where every phone call or text message can become a spark that ignites an angry explosion – communication after a separation or divorce often becomes worse rather than improving.  

So how can a mother and father in a high-conflict relationship learn to effectively communicate after their marriage has ended and they are living apart?  Obviously, there is no easy answer.  The road might continue to be rocky in the days ahead, and you may never be able to communicate as well as you’d like — but by employing a concept known as “Parallel Parenting” you can learn how to communicate better, and co-parent more effectively.

WHAT IS PARALLEL PARENTING?

Parallel Parenting is a form of co-parenting where a mother and father learn how to reduce the level of conflict by disengaging from each other.  They actually communicate less, and the communication takes place in a more structured manner, such as by email.  Often, in a high-conflict child custody litigation, the Court will step in and order the mom and dad to abide by a parallel parenting arrangement.  But parents are also free to employ this method on their own, without a court order.  Typically, a parallel parenting arrangement includes some or all of the following:
  • Communication between parents must be by email, rather than by phone, text message, or in person.  This allows the parents to think first and avoid making a knee-jerk comment that may be hurtful or angry — which is wise, because any remark you put in an email could later be read by a judge, and it might come back to bite you.
  • The parenting-time schedule must be in writing and strictly enforced.  No flexibility.  No trading days or weekends.  No negotiation.  Just stick to the schedule.  Since both parents know that they must stick to the schedule there is less opportunity for conflict and hostility.
  • The parents may keep a log of the children’s activities and/or medical issues during their scheduled time.  Then the parent who has the children will then give the updated log to the other parent at the end of his or her parenting time, when the children are exchanged.  Sending a log back and forth is a good way for the parents to keep each other informed about how the children are doing, while at the same time minimizing personal contact.  But the hard-and-fast rule for writing a log is this:  No editorializing.  No sarcastic comments.  No put-downs.  Just stick to the facts.
  • Each parent is responsible for obtaining information from the children’s school, including report cards, schedules, etc.  The parents should attend parent-teacher conference, performances, and events separately and have as little contact with each other as possible.
  • The parents should take turns having the children for birthdays; or split the day so that each parent has his/her separate time with the birthday boy or girl.  Parents should not attend birthday parties together if they cannot get along — and if they do they should remain cordial and have as little contact with each other as possible, so as to reduce conflict and spare the children the disappointment of having their special day ruined by their parents fighting.  
  • Each parent must come to terms with the fact that during the time the children are in the care of the other parent they may be on a different schedule, have different bedtimes, eat different foods, participate in different activities, and be disciplined in a different manner.  Obviously, neglect or abuse by a parent cannot be tolerated.  But, short of a dangerous situation, you may have to accept that your “ex” has a much different parenting style than your own, and that it’s OK.  If you parent consistently, then the children will know what to expect when in your home.  
  • It can be helpful for the parents to meet on a regular basis (monthly, quarterly, or every six months) with a counselor, a child psychologist, or a Parenting Coordinator to discuss problem issues and/or to learn how to stay on the same page in parenting their mutual children.  An expert can provide useful information and ideas, while helping the parents learn to communicate better and reduce the level of conflict
  • Above all, the parents should not place the children in the middle of their marital or post-marital problems.  Parents should not argue in the presence of the children.  They should not badmouth the other parent to the children.  They should not talk to them inappropriately about their legal case or show them court documents.  And they should not use the children as messengers or go-betweens to communicate with the other parent.  Remember, you are the parent.  Your job is to protect the children.  So, let the kids be kids, and keep them out of your adult disputes.
Parallel Parenting is often the best and sometimes the only way for high-conflict couples to co-parent.  It is not uncommon that, with the passage of time, the conflict between the parties will calm and the situation will improve to the point where they are able to communicate without anger and begin to co-parent cooperatively.

If you are caught up in a high-conflict situation and want to increase the odds that your children will grow up to be happy, healthy, and well-adjusted adults then you should consider learning the technique of “Parallel Parenting.”
Gary J. Frank is a Family Law Attorney and Mediator with over thirty years of experience in dealing in divorcecustody, legal decision-making, and parenting-time 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.
                                

SAY GOODBYE TO CUSTODY

Custody is now a relic of the past.  The Arizona legislature has spoken, and the term “Custody” has been banished from our statutes.  Beginning on January 1, 2013 parents coming before our courts will not be awarded sole custody, or joint custody . . . or any kind of custody.  Custody is dead and buried.  It has been replaced by the terms: “Legal Decision-Making” and “Parenting Time.”  From now on, the Arizona courts will either enter an order awarding joint legal decision-making to both parents; or they will give one parent the right to make decisions regarding the children.  The court could also split the decision-making rights and responsibilities between the parents (for example, the mother might be given the right to make medical decisions while the father has the right to make educational decisions).
Some experts view this new arrangement as an earth-shaking philosophical shift that will lead to a significant change in the way the courts decide family law cases.  Other experts take the position that the wording of the statutes is merely a matter of semantics, and that things will not change much at all.  Only time will tell.  Over the next year, as the law unfolds, I will keep you apprised of how the courts are interpreting the newly revised statutes.
For several years now, there has been a trend in this and many other states to award joint custody (rather than sole custody) in the typical family law case; and, today, court orders for equal parenting time and decision-making have become commonplace.  This represents a real departure from the past, when the vast majority of cases ended up with the children living primarily with one parent.  The recent changes to Arizona family law seem to reflect an extension of this trend.  While the statute does not contain a specific “presumption” of equal time and decision-making, at least one judge who has worked on the new law believes that joint decision-making and equal parenting time will now be the “starting point” for judges in determining family law disputes. 
This new philosophy is revealed in the language added to A.R.S. §25-403.02.  Section B of the statute states: “Consistent with the child’s best interests in section 25-403 and sections 25-403.03, 25-403.04, and 25-403.05, 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.  The court shall not prefer a parent’s proposed plan because of the parent’s or child’s gender.” (Emphasis added.)
A.R.S. §25-403 contains the factors that the Court will use in deciding what type of parenting arrangement is in the best interests of a child.  In the past, the court considered, as a factor, “whether one parent, both parents or neither parent has provided primary care of the child.”  However, that factor has been removed from the new statute.  Instead, the court will now consider “the past, present and potential future relationship between the parent and the child.”  Some experts are disturbed by this change.  They argue that a parent’s track-record of providing primary care is important evidence that should be considered by the court in determining the type of parenting arrangement that would be in a child’s best interests.  Other experts disagree and point out that after the divorce, both the father and the mother will probably have to work full-time, and each of them will be required to “step-up” and become single parents. Therefore, in making its decision, the court should consider not only the past and present, but also the anticipated future relationship between the parents and the children.  They argue that because a parent was not the primary caregiver in the past does not mean that he/she is incapable of nurturing and providing excellent care of the children in the future.  This issue will certainly be a hotly contested one in family law litigation during the coming year.
Another new factor for the court to consider in applying A.R.S. §25-403 is contained in Section 7.  This section states that, in deciding which type of parenting arrangement is in the children’s best interests, the judge shall consider “whether one parent intentionally misled the court to cause an unnecessary delay, to increase the cost of litigation or to persuade the court to give a legal decision-making or a parenting time preference to that parent.”   The apparent purpose of the new provision is to place both parents on notice that if either one of them makes a false or improper allegation, or attempts to expand or delay the litigation, or acts in an unreasonable manner, it could be a basis for the court to take legal decision-making and/or parenting time away from that parent.  (To put it in terms of the old statute, if the judge believes you have acted unreasonably during the litigation, it could result in you losing custody of your children.)
Domestic violence continues to be an important factor that the court will consider in making its determination of legal decision-making and parenting time.  But based on the language of the new statute, the presence of domestic violence now takes on even greater importance.  The legislature has added a new factor to A.R.S. §25-403 which requires that the court shall consider “whether there has been domestic violence or child abuse pursuant to section 25-402.03.”  That section mandates that “joint legal decision-making shall not be awarded if the court makes a finding of the existence of significant domestic violence pursuant to section 13-3601 or if the court finds by a preponderance of the evidence that there has been a significant history of domestic violence.  The statute also states that “the court shall consider evidence of domestic violence as being contrary to the best interests of the child.”  Under the law, abuse of a spouse is considered to be akin to child abuse, leading to “a rebuttable presumption that that an award of sole or joint legal decision-making to the parent who committed the act of domestic violence is contrary to the child’s best interests.”
Under A.R.S. §25-403 if the court determines that a parent has abused drugs or alcohol or has been convicted of a substance abuse offense within twelve months before a petition or request for legal decision-making or parenting time is filed, there is a rebuttable presumption that sole or joint legal decision-making by that parent is not in the child’s best interests.  What constitutes “abuse” of drugs or alcohol is not defined in the statute.  The issue will surely be the subject of much litigation in 2013 and beyond.

The Arizona legislature made a number of other important changes, as well, especially in the area of Third Party Rights (such as grandparent and non-parent visitation and legal decision-making); and in the area of Sanctions for Litigation Misconduct. 

Arizona’s new approach to what was formerly known as “custody” is groundbreaking.  It is at the forefront of a growing national trend which views divorced parents as partners in raising children.  But is this view realistic?  Will it protect the best interests of children in divorce cases, or will it hurt them?  The answers to these questions will be determined as the new law unfolds.


Gary J. Frank is a litigation attorney and mediator with over thirty years of Family Law experience in dealing in divorce, custody, and parenting issues. Mr. Frank has served on the Governor’s Task Force for Prevention of Child Abuse, and has received a Volunteer Lawyer award from the Maricopa County Bar Association for his work with children. 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. He can be reached by telephone (602-383-3610); or by email at gary.frank@azbar.org; or through his website at www.garyfranklaw.com. If you are in need of a consultation regarding any area of Family Law, please do not hesitate to contact us today.


 

MASS VIOLENCE MUST BE STOPPED

The massacre of kindergarten children and their teachers in Newtown, Connecticut is the latest, and most gruesome, example of what appears to be a growing trend.  It’s the new domestic terrorism.  Murder without motive.  No ideology.  No purpose other than to take innocent lives.  This insanity must be stopped, but how?  Stricter gun laws?  A greater focus on identifying and treating mental illness?  Ending the glorification of violence in video games, movies and television? Armed guards in schools?  Metal detectors in malls and movie theaters?  
How do we, as a society, protect ourselves and our children from random violence?  It’s time for us to begin a dialogue and search for answers.

Gary Frank is an Arizona Family Law Attorney and a children’s advocate.  He is a Family Law litigator and mediator, and for many years, he represented children in child abuse and neglect cases.  He was appointed to serve on the Governor’s Arizona Child Abuse Prevention Task Force.  He won a Maricopa County Bar Association Volunteer Lawyer of the Month award for representing a child in a Family Court Custody Action and successfully petitioning to have the case transferred to the Juvenile Court, where the child could be protected from her abusive parents.  Our law firm focuses on a wide array of Family Law Matters, including Divorce, Custody, Parenting Time disputes, Relocation/Move-Away cases, Enforcement and Modification actions, Child and Spousal Support, Paternity/Maternity, Grandparent and Non-Parent rights, Mediation, and all other matters involving families and children.  If you are in need of a consultation to learn about your rights, please call us today at 602-383-3610; or contact us by email at gary.frank@azbar.org.  To learn more about our firm, check out our website at www.garyfranklaw.com.  We’d be happy to help you.

THE TYPICAL ARIZONA FAMILY LAW TRIAL LASTS LESS THAN ONE DAY

Here’s something I’ll bet you don’t know:  While a trial in a criminal or a personal injury case, or even a contract dispute, may lasts days or weeks, or even months, litigants in a typical Arizona Family Law Trial are rarely allowed more than one day to present their entire case.  Family Law trials are often high-conflict matters involving multiple complicated issues such as divorce, contested custody, parenting time, child support, spousal support, and division of property and debts.  Sometimes they involve domestic violence issues.  Other times they entail dividing stock options, determining the value of a business, or selling real estate – all of which may require appraisals and expert testimony.  Sometimes they involve hidden assets and forensic accounting.  These are not easy cases.  Judges have the authority to allow a multiple-day trial, and sometimes they will do so; however,  litigants in Arizona Family Law courts will typically be given one day or less for trial; and each party is allotted one-half of that time in which to present his or her side of the case.      
What does this mean for you?  It means that in order to properly present your case, you will benefit from the help of an experienced attorney; someone who is organized and focused; who knows the rules of the game.  Someone who can take your family history and get right to the very essence of the problem.  Someone who can spot the most pertinent issues; then take the facts and distill them into a concise and persuasive argument.  You need someone who has excellent writing and research skills, since cases are often won by rock-solid arguments made in written motions which are submitted to the court before the trial.  You need someone who knows how to cut directly to the heart of the matter in the courtroom, using a strong cross-examination, or a powerful oral argument.   What you need is a skillful and experienced advocate who is capable of presenting the strongest possible case in the shortest of time frames.   

Our attorney, Gary Frank, has been a courtroom litigator in the Family Law arena for over thirty years, and is a strong and committed advocate for his clients.  In addition to being a litigation attorney, 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.  He has also acted, for many years, as a professional mediator of Family Law disputes.   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.

Domestic Violence Precludes Joint Custody

Under Arizona law, where there is an incident of significant domestic violence, or a significant history of domestic violence, the Court is prohibited from making an award of joint custody to the offender. The law is outlined in Arizona Revised Statutes, Section 25-403.03; and it was reiterated in a recent ruling handed down by the Arizona Court of Appeals in the case of Hurd v. Hurd, 1 CA-CV 07-0342, (2009). In custody matters, the Court is charged with protecting the best interests of the children. A parent who has a history of significant domestic violence, or who has committed a significant act of domestic violence, is deemed incapable of protecting the children’s interests. Therefore, he or she will not be given the responsibility, or the privilege, of acting as their joint custodian. Gary J. Frank has over 25 years of experience litigating high conflict custody matters, including domestic violence cases. Check out our web site at http://www.garyfranklaw.com/.  You can always contact us by email or call our office at 602-383-3610.

A.R.S. §25-403.3, DOMESTIC VIOLENCE AND CHILD ABUSE, states, in pertinent part:


A. “ . . . joint custody shall not be awarded if the court makes a finding of the existence of significant domestic violence pursuant to §13-3601 or if the court finds by a preponderance of the evidence that there has been a significant history of domestic violence.


B. The court shall consider evidence of domestic violence as being contrary to the best interests of the child. The court shall consider the safety and well-being of the child and of the victim of the act of domestic violence to be of primary importance. The court shall consider a perpetrator’s history of causing or threatening to cause physical harm to another person.


C. To determine if a person has committed an act of domestic violence the court, subject to the rules of evidence, shall consider all relevant factors including the following:


1. Findings from another court of competent jurisdiction.


2. Police reports.


3. Medical reports.


4. Child protective services records.


5. Domestic violence shelter records


6. School records.


7. Witness testimony.


D. If the court determines that a parent who is seeking custody has committed an act of domestic violence against the other parent, there is a rebuttable presumption that an award of custody to the parent who committed the act of domestic violence is contrary to the child’s best interests . . . “