GRANDPARENTS’ RIGHTS IN ARIZONA

 

“Do grandparents have visitation or legal decision-making rights rights in Arizona?” It’s a question that we hear often. And the answer is: “Yes.” There has never been a time when grandparents were more important to the well-being of children than today. Grandparents have always been intimately involved in the lives of their grandchildren, and today they are raising grandchildren in greater numbers than ever before. There are many reasons for grandparents having to step into the shoes of a parent. The list includes teen pregnancy, substance abuse, incarceration, financial difficulties, mental illness, and other problems. Even under the best of circumstances where the parents are capable caregivers, the presence of grandparents in the children’s lives brings an added sense of love and stability.

But these are complicated times, and our law firm receives calls just about every day from loving grandparents who are being excluded from their grandchildren’s lives and want to learn about grandparent rights. It could be because a parent is angry and seeks to punish the grandparent. It could be because a parent who is on drugs or was missing now returns and insists on taking the children back. Maybe it’s because a parent has remarried and the new husband or wife feels threatened that the children have a relationship with the former spouse’s parents. Or it might be that one of the parents has died, and the surviving parent wishes to move on and put the deceased parent and his family in the past. There are a myriad of reasons why loving grandparents may be cut out of the picture and left in the cold. It’s truly heartbreaking for the grandparents. But, in the long run, it is the children who suffer the most.

In Arizona, grandparents (and other third-parties with a close relationship to the children, such as step-parents and others) have legal rights. Arizona Revised Statutes, Section 25-409 is the Grandparent Visitation, Grandparent Custody (now referred to as “legal decision-making authority), and Third Party Visitation / Custody statute.  The statute lists the circumstances which would enable a grandparent or other non-parent to file a petition for visitation or custody; as well as the factors that the Court must consider in determining whether to grant the petition.

This is not an easy process. In making its decision, the Court must weigh the constitutional right of parents to raise their children as they see fit – against the benefit to the child of maintaining an ongoing relationship with a grandparent or other non-parent that the child loves, and with whom he or she has a close bond. The Court is required to give “special weight” to the parent’s decision. But if the judge feels that it would be in the child’s best interests to maintain a relationship with the grandparents (or other non-parents), and the child’s interests would be substantially harmed if that relationship were severed, then the Court has the authority to order visitation to take place. And if it is determined that all of the factors listed in A.R.S. §25-409(A) are present and it would be “significantly detrimental” to the child to remain or be placed in the care of either legal parent, then the Court can order that the grandparents (or other non-parent) shall have legal decision-making authority (custody) of the child. A strong, experienced attorney can be a tremendous help to someone who is trying to obtain grandparent visitation or custody.

If you are a grandparent or a non-parent who has been (or might be) unfairly cut out of your grandchild’s life and you would like to learn more about how to assert your legal rights, please do not hesitate to give us a call. We’d be happy to talk to you.

 

Our attorneys, Gary Frank and Hanna Juncaj, represent many grandparents and other non-parents in Arizona courtrooms. They are strong litigators and compassionate counselors.  If you are in need of a consultation regarding how to assert your grandparents’ or non-parents’ rights, please call us today at 602-383-3610; or contact us by email through our website at www.garyfranklaw.com.

 

 

EMBRACING CHANGE

“Change is constant.  For some people, especially those who come from bigger companies, the constant change can be somewhat unsettling at first.  We must all learn not only to not fear change, but to embrace it enthusiastically and, perhaps even more important, to encourage and drive it.  We must always plan for and be prepared for constant change . . . Never accept or be too comfortable with the status quo, because the companies that get into trouble are historically the ones that aren’t able to adapt to change and respond quickly enough.”


Tony Hsieh
CEO of Zappos.com
from the book, “Delivering Happiness”


The need to embrace change applies to all of us, in both our personal lives and at work.   Over the years, the practice of law has seen enormous changes.  The  most successful lawyers are the ones who not only accept, but embrace, change.  Our attorney, Gary Frank, remains on the “cutting-edge” of Family Law by staying up to date with the latest statutes passed by the Arizona Legislature, and by studying the new decisions handed down by the Supreme Court and Appellate Courts.  He improves his knowledge of the law by attending continuing legal education courses on a regular basis throughout the year.  And he hones his courtroom skills by using the very best litigation practices and strategies.

Many law firms are locked into a particular office location that is often difficult or inconvenient for clients to visit.  But modern advances in technology, such as networked computers, laptops, tablets, smart phones, and the internet, have allowed lawyers to become “road warriors” and provide top-notch representation while being more accessible to their clients.  Therefore, the Law Offices of Gary J. Frank are conveniently located throughout the Valley — in Scottsdale, Paradise Valley, Tempe, and the prestigious Biltmore area of Phoenix — in order to better serve our clients.      

Yes, change is, indeed, constant; and our ability to embrace change has enabled us to be successful.  But, just as importantly,  our attorney, Gary Frank, is also known for embodying qualities that are timeless and enduring:  Experience; Excellence; Integrity; Strong Advocacy; Common Sense; and and a Commitment to always putting his clients first.  We are a modern law firm with old fashioned values.  That’s what sets us apart.

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.   We handle a full range of Family Law matters, including divorce, custody, spousal and child support, division of property and assets, modification and enforcement actions, as well paternity/maternity cases, grandparent or non-parent custody and visitation actions, and relocation/move-away cases.  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 [email protected]   We look forward to hearing from you.

ATTORNEY FEE AWARDS – Restoring the Balance of Power

If you are involved in a divorce and/or custody case and are afraid that you don’t have the financial resources to stand up and fight for your rights, here’s the good news — Attorney Fee Awards, under Arizona law, are the great equalizer.
It is not uncommon, in a divorce or custody case, for one party to have a much higher earning capacity than the other party.  Sometimes the party with the greater earning ability will use that power as a hammer, bullying the poorer party with threats or making her/him spend money on litigation until those resources are exhausted.  “You don’t have the money to fight me, so you might as well take what I’m offering.”  That’s a familiar refrain in Family Court cases.  But know this:  If you are the party with the lesser resources in a divorce or custody matter, you do not have to allow yourself to be “steamrolled.”  Arizona has laws that can help you level the playing-field, so that you can assert your legal rights.
Arizona Revised Statutes, Section 25-324 provides that “The court from time to time, after considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceeding, may order a party to pay a reasonable amount to the other party for the costs and expenses of maintaining or defending (the litigation).”
What this means is that the judge can force the party with the greater resources to pay the poorer party a reasonable amount to cover his/her attorney fees and litigation expenses.  The poorer party can file a motion for an award of attorney fees at the beginning of the case, or at any other stage of the proceeding.  It can be done more than once, if necessary.  The judge will set a hearing date and the party will be able come into court to explain why she or he is in need of help paying attorney fees.  If there is a significant disparity of income or resources between the parties, or if one party has been bullying the other or acting unreasonably, then the judge has the authority to make an attorney fee award.
Another statute, A.R.S., Section 403.08, provides that “(A) In a proceeding regarding sole custody or joint custody, either party may request attorney fees, costs and expert witness fees to enable the party with insufficient resources to obtain adequate legal representation and to prepare evidence for the hearing; (B) If the court finds there is a financial disparity between the parties, the court may order payment of reasonable fees, expenses and costs to allow adequate preparation.”

This statute is similar to A.R.S., 25-324 but applies to non-divorce cases involving custody, such as Modification of Custody actions, Paternity, Grandparent, and Non-Parent custody matters, etc.

The Arizona Courts have explained that the purpose of the statutes allowing the court to make an attorney fee award is to provide a remedy for the party least able to pay; and to insure that the poorer party has the means to litigate the action free of the other’s hold on the family finances.

By making an award of attorney fees in a divorce and/or custody case, the court can place the parties on a level playing-field and restore the balance of power.

If you are in need of help in your divorce or custody case, contact our office today.  You can call us at 602-383-3610 or email us through our web site at http://www.garyfranklaw.com/.

The Definition of “Family” Is Changing – Family Law Must Change, Too

The definition of “Family” is changing.  According to a recent study by the Pew Research Center, about 29 percent of children under 18 now live with a parent or parents who are unwed or no longer married.  This is a five-fold increase from 1960.  This statistic does not merely reflect a higher divorce rate — it is also the result of a rising number of couples who have decided to live together without ever marrying.  In fact, U.S. census data released in September, 2010 shows that marriages have hit an all-time low of 52% for adults 18 and over.  In 1978 just 29% believed that marriage was becoming obsolete.  Today, that figure has grown to 39 percent.  According to the Census Bureau, opposite-sex unmarried couples living together jumped 13 percent this year, to 7.5 million.  Experts speculate that the sharp increase is a result of both changing societal values and the current economic woes.

Whereas “Family” was once defined as a married man and a woman, and children born in wedlock, that definition is becoming much broader in today’s society.  It now includes “blended families” with step-parents and children from different relationships; single-parent families; families in which the parents are cohabiting; families in which the children are being raised by grandparents; and gay relationships with or without children.  Our definition of “Family” is morphing and growing, and it is becoming more accepting and inclusive.

What hasn’t changed much is the laws relating to divorce and Family Law.  In order to provide protection for people in non-marital relationships, our laws need to change.  For instance, a spouse who has given up her or his career to care for children throughout a long marriage is entitled to spousal maintenance after a divorce; but a person who has done the same thing in a long-term cohabitation arrangement is not.  Unlike California Arizona has no “palimony” law to protect that person.  And while a spouse in a marital relationship has community property rights, and rights of inheritance under the law, a person in a cohabitation relationship has no such protection after a break-up or a death.  Arizona has no “common law marriage” statute.

For these reasons, a person entering into a committed relationship must think long and hard about what form that commitment should take.  Marriage or Cohabitation?  There is a significant difference from a legal perspective, with a spouse in a marital relationship having far more protection.

Some recent changes have been made in Arizona, especially in the area of protecting children.  Grandparents, step-parents, and other non-parents now have a legal right to visitation and, in some cases, custody of children with whom they have had a close bond.  Single people and gay couples are now allowed to adopt children who are in need of a loving family.  Custody laws have become more realistic and fair in guiding judges to make determinations of joint vs. sole custody.  New Parenting Time Guidelines have been enacted, and the existing Child Support Guidelines are in the process of being revamped.

Changes are occurring in how we, as a society, view and define “Family.”  The law must continue to evolve in order to accommodate those changes.

Gary Frank has practiced Family Law in Arizona for almost thirty years, acting in the capacity of a counselor, a litigator, a mediator, and a judge pro tem.  He is a committed advocate for families and children.  If you are in need of advice or representation, contact our office at 602-383-3610 or email us through our website at http://www.garyfranklaw.com/.

GRANDPARENTS’ RIGHTS – Are You Being Deprived of Visitation With Your Grandchildren?

There is nothing more heartbreaking than a grandparent who is not allowed to have contact with the grandchildren, especially during the holidays.  The relationship between a child and his or her grandparent is a special kind of bond, one that cannot be replaced.  For a grandparent to be unfairly “cut out of the picture” can be devastating for both the grandparent and the child.
Arizona law provides that grandparents do have a legal right to visitation with their grandchildren under certain circumstances.  Arizona Revised Statutes, Section 25-409 spells out the criteria that the courts use to determine whether grandparent visitation would be appropriate in a particular case; and the appellate courts have published cases which interpret the statute and provide guidance to help the trial judge make a decision.
There is a presumption that a fit parent’s decision to deny or limit visitation was made in the child’s best interests.  However, that presumption can be rebutted by evidence to the contrary.
A.R.S., Section 25-409(A) provides that “The superior court may grant the grandparents of the child reasonable visitation rights . . . on a finding that the visitation rights would be in the best interests of the child and any of the following is true:
1.                  The marriage of the parents of the child has been dissolved for at least three months.
2.                  A parent of the child has been deceased or has been missing for at least three months . . .
3.                  The child was born out of wedlock.
Section (C) of the statute provides that “In determining the child’s best interests the court shall consider all relevant factors, including:
1.                  The historical relationship, if any, between the child and person seeking visitation.
2.                  The motivation of the requesting party in seeking visitation.
3.                  The motivation of the person denying visitation.
4.                  The quantity of visitation time requested and the potential adverse impact that visitation will have on the child’s customary activities.
5.                  If one or both of the child’s parents are dead, the benefit in maintaining an extended family relationship.
To obtain court-ordered visitation over the objection of a parent, the grandparent must fall within one of the three categories listed in Section A of the statute, above; and the grandparent must be able to prove that visitation would be in the child’s best interests.  If the grandparent can demonstrate that he/she has maintained regular contact and has a loving and appropriate relationship with the child, then the prospect of obtaining visitation is greatly enhanced.  When one of the parents has died, the Court will give special consideration to protecting the relationship between the child and the deceased parent’s family.
The Arizona courts have ruled that while a trial judge has considerable discretion in shaping a grandparent visitation order, the court is not free to simply second-guess the decision of a fit parent as to visitation rights.  Where a parent has agreed to allow some reasonable contact between the grandparents and the children – even if it is not as much time as the grandparents would like – the courts will usually not interfere with the parent’s decision.  On the other hand, where a parent refuses to allow any contact at all, the Court has the power to step in and order the parent to let the grandparents spend time with their grandchildren on a regularly scheduled basis.
These are difficult and complex cases.   If you are in need of a grandparents’ rights attorney – or if you are a parent who believes that contact with a grandparent would be potentially harmful to your child – then do not hesitate to contact the law firm of Gary J. Frank P.C. for a consultation.  You can reach us by telephone at 602-383-3610 or by email through our website at http://www.garyfranklaw.com/.   Contact us today.

GRANDPARENTS HAVE A LEGAL RIGHT TO VISITATION UNDER ARIZONA LAW

The United States Supreme Court has held that parents have a fundamental constitutional right to control child rearing. Under Arizona law, a fit parent is presumed to be able to make decisions which are in his/her child’s best interests, and the courts will stay out of the decision-making unless it is clear that the parents’ decisions could be damaging to the child.
However, Arizona Revised Statutes, Section 25–409 gives a judge the right to intervene and order visitation between a child and her/his grandparents (or great-grandparents) — even over the objection of the parents — so long as the grandparents can meet the standards delineated in the statute. Basically, a grandparent must be able to prove that visitation rights would be in the best interests of the child and that any of the following is true:
1. The marriage of the parents of the child has been dissolved for at least three months;
2. A parent of the child has been deceased or has been missing for at least three months (i.e., the parents location has not been determined and the parent has been reported as missing to a law enforcement agency); or
3. The child was born out of wedlock.
In determining the child’s best interests the court shall consider all relevant factors, including:
a.  The historical relationship, if any, between the child and the person seeking visitation;
b.  The motivation of the requesting party in seeking visitation;
c.  The motivation of the person denying visitation;
d.  The quantity of visitation time requested and the potential adverse impact that visitation will have on the child’s customary activities; and
e.  If one or both of the child’s parents are dead, the benefit in maintaining an extended family relationship.
If you are being unfairly deprived of contact with your grandchild and would like to learn more about your rights, then please do not hesitate to call our office for a consultation.
Gary Frank is a Family Law Attorney with over thirty years of experience in dealing with grandparents visitation / custody matters, and advocating for the rights of children.  You can reach us by telephone (602-383-3610), email ([email protected]), or through out website (http://www.garyfranklaw.com/).  We’d be happy to hear from you.

A ONE-TIME CONSULTATION WITH AN ATTORNEY CAN REALLY HELP

Filing for divorce on your own can be overwhelming.  Wading through the court-approved forms may be confusing and is often an exercise in futility.  What are my legal rights? What should I ask for? How does the court process work?  How do I know I’m doing this correctly?  There is so much at stake:  Division of property and debts, custody, parenting time, child support, spousal maintenance.  Handling any one of these issues improperly could mean the difference between a future of relative comfort or years of suffering.  When the divorce is done, it’s done.  You have one chance to get it right.  Undoing a mistake is difficult and, sometimes, impossible. 

Document preparers can help you fill out paperwork but they’re not trained in the law.  They’re prohibited from providing legal advice.  Lawyers, on the other hand, have the benefit of many years of legal training and continuing education.  They are well-versed in the law; they understand the divorce process and can help you understand what is best for you.


But what if your divorce is simple, or you just can’t afford ongoing legal representation?  Even if you’ve decided to represent yourself, you can still benefit from an attorney’s advice — and chances are that the expense is less than you imagined.  You can use an attorney as a counselor, an adviser, a guide to help you through the legal process.

A one-time consultation with an attorney is relatively inexpensive, and it can help tremendously.  In a single meeting, the lawyer can assist you in filling out the paperwork.  He or she can help you understand your legal rights, and explain what you need to do to request a hearing, obtain financial information, or get a trial date.  The lawyer can formulate a game plan, answer your questions, and help you navigate through the sticky and sometimes complicated issues involved in a Family Law case.  Don’t just assume that you can’t afford legal advice.  Call for a one-time consultation.  You may be surprised at how affordable it is — and how much it helps.




Gary Frank is an Arizona Family Law Attorney with more than 30 years of experience in handling cases involving divorce, custody, parenting time, child support, spousal maintenance, division of property, grandparent and non-parent rights, and all other matters relating to family law.  If you would like a consultation, feel free to contact us at 602-383-3610 or by email at [email protected]  To find out more about our firm, take a look at our website at www.garyfranklaw.com.

It’s easier than you may think, and less expensive, too.