NEW CASE LIMITS JUDGE’S ABILITY TO MAKE DECISIONS FOR PARENTS

It came on like a silent earthquake. You didn’t see it coming. You never felt it when it hit. But now the foundation of the place where you live has shifted. The cracks in the walls are becoming visible. And nothing will ever be the same.

That is the effect of the 2018 Arizona appellate court case of NICAISE v. SUNDARAM,

Before Nicaise, the Family Court was the final arbiter of disputes over matters like education, medical, religious, or other decisions that parents make. If the parties couldn’t agree on an important parenting issue, one of them could take the matter to court and, after a trial or a hearing, the judge would make the decision for them.

But not anymore.

The Court in Nicaise ruled that a judge “may not substitute its judgment for that of a parent and make parenting decisions for them when they are unable to agree.” So now, when parents disagree, a judge can no longer decide which school a child will attend, or what doctor can treat her, or whether she will participate in therapy, etc. Those are parental decisions, and the Court no longer has the authority to intervene and “break the tie.”

For a number of years, the trend in divorce, legal separation, paternity, and other Family Law cases has been for the courts to award the parents joint legal decision-making authority (formerly called “joint custody”). But the Nicaise case is likely to slow down that trend, or even stop it in its tracks, in cases where people have trouble co-parenting.

Previously, the courts would sometimes enter a joint legal decision-making order, but give one of the parents the “Final-Say” in the event of a disagreement. It required the parents to at least discuss the issue, and each parent had input. But that has changed, too. The Court, in Nicaise, determined that “an award of joint legal decision-making that gives final authority to one parent is, in reality, an award of sole legal decision-making.” So now, if parents cannot seem to agree, then instead of awarding them joint custody with one parent having “final say,” it is likely that the judge will simply award one parent sole legal decision-making authority. This might make the other parent feel as though his or her parental rights have been stripped away. And it could set the stage for less co-parenting, and more fighting, in the future.

The effect of the Nicaise ruling is that if a mother and father are unable to make decisions together, the Court will have to appoint one parent to make all the decisions; or it might split up the decision-making authority so that, for instance, one parent is in charge of making educational decisions while the other has the authority to make medical decisions.

The Nicaise case represents yet another major shift in how Family Law cases are decided in Arizona. It may take years for the repercussions of that ruling to become clear. But this we do know: There is no longer a reason for a judge to order that the parents have joint legal decision-making authority with one parent having the final say. And when parents appear to be unable to make decisions together, it is likely that a judge will grant one parent or the other sole legal decision-making authority. This could derail the decades-old trend of Arizona courts giving divorced/separated parents joint decision-making responsibility, and expecting them to be able to co-parent.

How will the Nicaise ruling play out in the future? – It may result in pitched court battles between parents, with each of them seeking “sole custody,” and it could turn divorce and custody litigation into a high-conflict, winner-take-all contest. This makes it even more important for moms and dads to try to work together and co-parent effectively. And, where they are unable to do so, it will be worthwhile to consider peaceful options, such as mediation and settlement negotiation. Because if those efforts fail, and litigation becomes the only alternative, it is likely that one parent is going to win, and one parent is going to lose. And sometimes that is not the best outcome for the children.

 

 

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. He has also acted in the capacity of a Judge Pro Tempore in the Maricopa County Superior Court, and served 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 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, call us today 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.

 

 

 

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.

 

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.

 

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.

TEN TIPS FOR SURVIVING YOUR DIVORCE — AND THRIVING

This year is coming to a close.   If you are in the middle of a divorce – or if you are getting ready to go through one – the next twelve months could be tough.  So, here are some simple guidelines to make the journey less difficult.

1.   Keep your children out of the middle of your dispute

Research shows that children of divorce can grow up to be happy, well-adjusted adults.  However, the research also shows that children of high-conflict divorces can develop emotional problems that last a lifetime.  It can be devastating for a child to be caught in the middle of a dispute between parents.  You love your children.  That’s a given.  But loving your children is not enough.  You need to protect them from the emotional turmoil that you, as parents, may be going through.  This is an enormous challenge.  The key is to keep the children out of the middle of your dispute.  Don’t use them as messengers.  Don’t make them witness angry arguments between the parents.  Let them know the divorce is not their fault, and that both parents will continue to love them and take care of them, even after the divorce.

2.            Allow your child to love the other parent

When a marriage comes apart and emotions are at a boiling point, it is easy for a parent to make the mistake of voicing his or her displeasure with the other parent to the children.  Sometimes this leads to a war of words, with each parent feeling the need to “defend” himself / herself by badmouthing the other.  But here’s a warning:  Clinical research shows that this type of behavior can cause serious emotional problems for children.  They need to be able to love both of their parents.  So give them your permission.  You would probably place your life on the line to protect your children from a stranger who tried to hurt them.  Then why wouldn’t you make every effort to protect your children from your own anger and toxic feelings toward their other parent?    

3.            Don’t give your child too much information 


Of course, it is important to be honest with your children – but giving them information that is not age-appropriate, or talking to them about details of your divorce that they are incapable of emotionally processing, can be harmful and destructive.   Don’t talk to your children about the legal issues of your divorce.  Don’t show them your court paperwork.  Don’t share adult information with young children.  If you need to vent or get your feelings off your chest, turn to a trusted friend, a family member, or a therapist.  Keep your children out of the loop.  Let them be children.    

4.            Try to be flexible 

Parenting-time disputes can be the cause of much stress, especially during the holidays.  You can save yourself a lot of grief by trying to be flexible.  Being flexible is not a sign of weakness.  It sends a message that you are willing to compromise.  Extending an olive branch often leads to the other parenting being willing to compromise, too.  Parents who refuse to be flexible can find themselves locked in a never-ending battle; and instead of being able to solve their own problems they tend to return to court over-and-over again, putting their fate in the hands of lawyers and judges. 

 

5.            Don’t rely on “legal advice” from your friends 

Don’t believe everything your hear, especially when it comes from a friend or family member who is trying to give you advice about legal matters.  Everyone knows a friend whose own divorce was a nightmare and promises that your outcome will be terrible, too; or one who insists that your judge will give you everything you want because your custody case is a “slam-dunk.”  Receiving legal advice from a friend or family member can be a huge mistake, since tends to give you false expectations.  If you want good, solid legal advice about your divorce or custody case, talk to a lawyer who specializes in Family Law.

 
6.            Choose a lawyer wisely 


One of the most important decisions you will ever make is finding the right attorney.   Many people who are embroiled in a family law dispute say, “I’m going to hire the meanest, most aggressive, attorney I can find.”   That usually works – for the lawyer.  If the lawyer is only mean, or only aggressive, then the result will probably be a long, contentious, and expensive litigation.  That means more money for the lawyer.  Your money!  What you really want is a highly qualified attorney, one who is looking out for your interests.  The best attorney is someone who is skilled and experienced; someone who will fight for your rights — but who is also looking for ways to resolve the matter peacefully, if at all possible.  Most importantly, you should select an attorney who is a good match for you, and who makes you feel comfortable and confident.

 

7.            Be willing to compromise


Court litigation is, by nature, an adversarial process.  It can take a long time and cost a lot of money – and in the end, the final decision will be made by a judge who is a stranger to both parties.   Therefore, in any divorce or custody litigation, your goal should be to negotiate a solution that meets your needs and the needs of the children.  You can save yourself a great deal of time and money, and avoid much stress, by being willing to make reasonable compromises.  People who are able to negotiate a fair resolution of their dispute tend to be much happier with the arrangement in the long run.


8.            Talk to someone you can trust


A person going through the turmoil of divorce or custody case can benefit from a strong support system.  If you are struggling with a divorce, or if you are caught in a highly contested custody case, find someone to talk to. Whether it is with a family member, a friend, someone from your church, or a therapist, talking about your feelings is a healthy outlet.   There are also many divorce and single-parent support groups in your community that will welcome you and help you understand that you are not alone.  

9.            Take care of yourself

You can’t take proper care of your family if you don’t take care of yourself.  So take time to exercise.  Join a yoga class.  Meet a friend for dinner.  Or just spend some “down-time” relaxing at home. — Good nutrition, vigorous exercise, plenty of sleep and relaxation, lots of love and laughter — these are the keys to surviving a divorce and thriving.  Taking care of yourself will help you get through this tough time in your life.  It’s a wise investment.

 

10.         Know that there is life after divorce


It may not seem like it now, but rest assured that there is, indeed, life after divorce – and it can be great.  It will certainly be an adjustment, and it will take a commitment on your part, but getting out of an unhappy marriage, making new friends, and taking control of your physical and mental health, can give you a new perspective and lead to a happier life.

Best wishes for a healthy and happy New Year!

 

The law firm of Gary J. Frank P.C. offers strong advocacy for clients involved in all areas of Family Law, including disputes involving divorce, custody (legal decision-making), parenting time, interstate custody or visitation, grandparent and non-parent custody and visitation, division of property and businesses, spousal and child support, modification of existing orders, enforcement of orders, relocation / move-away cases, paternity, guardianships, and other matters involving children and families.  Gary Frank is also an experienced Family Law Mediator who can help you resolve your dispute without the need for fighting in court.  With more than thirty years of experience as a courtroom litigator, as well as a mediator and a former Judge Pro Tem, Mr. Frank brings skill, compassion, and a depth of understanding to each matter he handles, and each client that he represents.  Our office is located in the Biltmore area of Phoenix, Arizona, and we have satellite office in Scottsdale and Paradise Valley to more conveniently serve our clients.  You can reach us by telephone at 602-383-3610 or by email at gary.frank@azbar.org.  You can also check us out on our web site at www.garyfranklaw.com.

IF YOU THINK YOU CAN’T AFFORD A FAMILY LAW ATTORNEY, YOU’RE PROBABLY WRONG

If you think you can’t afford a Family Law Attorney, you’re probably wrong.  Consider what’s at stake:  Your children.  Your assets.  Your future.  Placing these important matters in the hands of an experienced professional, rather than taking a do-it-yourself approach, is likely to pay dividends.  While it is true that contested divorce and/or custody cases can become expensive, there are strategies you can utilize which are designed to maximize the odds of a favorable outcome, while minimizing the cost.

FIND A QUALITY ATTORNEY:

When hiring a Family Law Attorney look for someone with extensive experience and an excellent reputation.  One good way of doing this is to ask for a recommendation from a therapist, a counselor, other attorneys, or people you know who have gone through a divorce or custody case.  When you have narrowed your search, meet and talk with the attorney to make sure you are comfortable with him or her.  Prepare a list of questions to ask at your consultation, so that you can make sure you understand how the process works and what the attorney will be doing for you.  If you do not feel a sense of trust and confidence in the attorney, find another.   A strong, experienced attorney may have a higher hourly rate than an inexperienced or sloppy one, but he will not spend his time – and your money – “spinning his wheels.”  He knows what needs to be done, and how to do it.  

LOOK FOR WAYS TO NEGOTIATE:

When a person becomes embroiled in a heated divorce or custody dispute, it is easy to simply “shut-down” and refuse to communicate.  This is a recipe for a lengthy and expensive litigation.  Certainly, there are times when you need to stand your ground and fight (for instance, you wouldn’t want to give joint decision-making authority and equal parenting time to a child abuser); however, in the vast majority of cases a negotiated solution is possible, and it’s likely to be the quicker, less expensive, and better option.  There are a number of dispute resolution alternatives that you can use to simplify the process and save money.  These include private mediation, court ordered ADR conferences, and settlement conferences conducted by a judge pro tempore   You can also set up a settlement meeting with the parties and their attorneys.  

By being willing to negotiate, you take control of the situation rather than placing your life in the hands of a judge who doesn’t know you and has only a limited amount of time to hear your case.  When parties to a divorce or custody case are able to successfully negotiate their own resolution, they tend to “own it” and are happier with the outcome in the long run.  They have “built a bridge” and learned to communicate.  Therefore, they are less likely to run back to court, and spend their hard-earned money on attorneys, whenever a future dispute arises. 

It helps to view mediation or a settlement conference as a business negotiation.  Taking strong emotions out of the equation allows you to view things more objectively and make better decisions.  Your attorney can assist you in preparing for the negotiation, so that when you walk into the meeting you will be confident and well-organized.  This will increase your chances for success. If the negotiation doesn’t result in a settlement, your attorney is standing by, ready to go to battle for you.  However, a strong, experienced attorney who is looking out for your best interests can often save you tens-of-thousands-of-dollars by helping you reach a favorable settlement and avoid a lengthy, contentious, expensive litigation. 

CONSIDER “LIMITED SCOPE” REPRESENTATION:

If you have a relatively simple matter, or if you cannot afford an attorney to represent you on a full-time basis, you can still make effective use of an attorney by having him or her assist you on a “Limited Scope” basis (sometimes referred to as “unbundled services”).  Lawyers in Arizona are now allowed to assist a party by performing a particular service, such as writing a letter, or participating in a deposition, or drafting a legal document to be filed with the court, or even by appearing on the client‘s behalf for just one hearing.  This procedure requires the attorney and client to enter into a written agreement specifying the action to be performed.  Thereafter, the lawyer files a Notice of Limited Scope Representation and appears in the case for the purpose of providing the service described in the agreement and the Notice.  When that service has been completed, the lawyer files another notice and withdraws from the matter, and the attorney-client relationship is terminated.  If the lawyer is needed later in the case, he can once again become involved, but a new attorney-client agreement and Notice of Limited Scope Representation is necessary.  By using an attorney on a Limited Scope basis you are able to save money, since the attorney is working only on a specified project and is not representing you in the case as a whole. 


USING AN ATTORNEY AS A CONSULTANT:

If you cannot afford full-time legal representation in a Family Law litigation, you might consider using an attorney as a consultant.  You can do this by scheduling consultations with the attorney, as-needed, in order to help you understand the process, so that you can effectively represent yourself.  The lawyer does not represent you in your case.  Rather, you are going in for advice, from time to time.

When a litigant steps into the courtroom, he or she is expected to understand the applicable law and the proper procedure.  This is where many self-represented litigants get lost.  The result can be disastrous.  Presenting a legal case is not simply a matter of writing a letter to the court, or standing before the judge and telling your story.  There are rules of procedure, and rules of evidence, and you need to know what documents to file and when to file them.  There are also time limitations.  Imagine stepping on a baseball field to play in a game without knowing the rules.  Which end of the bat do I use?  What is a “Ball” or a “Strike?”  After I hit the ball, which way do I run?  In court, just like in a sporting event, there are rules to the game, and if you don’t know those rules you are at a huge disadvantage.  This is why so many self-represented litigants come into the courtroom full of hope, and walk out distraught, having suffered a terrible outcome, and feeling as if they were never heard.  They lost because they didn’t know the rules of the game.

Presenting an effective argument to the court requires much thought and a great deal of organization and preparation.  For instance, it is not enough simply state that your opponent is lying about his income, or that you earn less now than you did the last time you were in court.  You must have documentary proofin the form of tax returns, W-2’s, pay stubs, bank statements, and/or other income information.  Putting together the necessary proof and presenting your argument in a persuasive manner are critical to achieving a successful outcome.  This is where a consultation with an attorney can be of great value. 

In a consultation, the attorney can help you understand the law and your legal rights.  He can help you learn the rules of court.  He can help you put together your documents and organize the evidence in a manner that will allow you to prove your case.  Finally, the attorney can assist you in determining the best way to present your argument to the judge. 

 There are many ways in which you can use an attorney to help you achieve a favorable result in your Family Law Case.  It’s not only wealthy people who can afford a good lawyer.  You can, too.

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, legal decision-making, parenting time, spousal maintenance, 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 gary.frank@azbar.org.   We’d be happy to help you.


DON’T LET FEAR AND ANGER DERAIL YOU

My job as a family law attorney is to try to help people get through the worst time in their lives.  Their most personal relationship is crumbling – the one they thought would last forever.  They are afraid  for their children.  They are forced to divide assets that they may have slaved their lives away to accumulate. They fear what the future might look like and wonder how they will survive.  Their whole world is being torn apart.  They feel powerless. 


In difficult times it is easy for us to get caught up in fear, anger, and all the negatives, and lose sight of the fact that family, friends, good health, and a connection to our community are our truest source of riches.

We need to remember that while we cannot control outside circumstances, or how other people may act, we do have the power to control our own attitude.  This power is something that can never be taken from us.  Despite our current difficulties, we can focus on the positive aspects of our lives.  We can try to be more forgiving of ourselves and others.  We can take small steps to live a healthier lifestyle.  We can be grateful for what we do have.  This certainly isn’t an easy task, but it’s the key to being able to weather the storms of life.


Finally, “being of service” is the ultimate cure for fear, anger, resentment and self-pity.  Helping others enables us put our own life in perspective.  It reminds us that we are not alone in our suffering.  There are many others whose lives are even tougher than ours.  By stepping up and showing kindness and compassion, we can ease the pain of others  — and heal ourselves in the process.  Being of service empowers us and allows us to move forward.

If you are caught in the downward spiral of a crumbling relationship and negative thinking, I’m here to tell you that there is a beacon of light at the end of the tunnel.  Your problems are only temporary, and there are things you can do to get you through this difficult time.  Focusing on what is good in your life; maintaining a positive attitude; exercising; getting enough sleep; eating well; turning to family, friends, and faith; becoming active in your community; getting counseling; trying to be more forgiving of yourself and others; being of service; and being grateful for what you have, instead of being resentful for what you lack — these are the things that will get you through.  And one day, you may just wake up and discover that you have become a stronger and happier person than ever before. 

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, 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 you.


IMPORTANT ADVICE FROM A MINNESOTA JUDGE

Nothing is more important to us than our children — we always try to do what is best for them. 

Of course, we all know this. None of us would disagree.  But when two parents are embroiled in a contentious divorce or parenting dispute, it can be easy to forget.  So just remember this:  What we say about the other parent, in the heat of anger, can cut our children like a knife, and leave lasting wounds.

Here are some words of wisdom, from a Minnesota judge.  Although the words were spoken many years ago, they are timeless.

This is what he said:

“Your children have come into this world because of the two of you.  Perhaps you two made lousy choices as to whom you decided to be the other parent.  If so, that is your problem and your fault.

No matter what you think of the other party – or what your family thinks of the other party — these children are one-half of each of you.  Remember that, because every time you tell your child what an ‘idiot’ his father is, or what a ‘fool’ his mother is, or how bad the absent parent is, or what terrible things that person has done, you are telling the child half of him is bad.

That is an unforgivable thing to do to a child.  That is not love.  That is possession.  If you do that to your children, you will destroy them as surely as if you had cut them to pieces, because that is what you are doing to their emotions.

I sincerely hope that you do not do that to your children.  Think more about your children and less about yourselves, and make yours a selfless kind of love, not foolish or selfish, or your children will suffer.”

Judge Michael Hass*



Gary Frank is an Arizona Family Law Attorney and a children’s advocate.  For many years, he represented children in child abuse and neglect cases in Superior Court.  He has been appointed to serve on the Governor’s 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 Juvenile Court, where the child could be protected from her abusive parents.  Our law firm focuses on Family Law Matters, including Divorce, contested Custody matters, 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.

*(Source: Huffington Post)



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@garyfranklaw.com; 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.

 


It Does Not Take Two To Tango — Dealing With A Spouse With A Personality Disorder –

Most people think that a “high-conflict divorce” necessarily involves two people who are angry and unreasonable. But that’s not always the case. When one party to a divorce suffers from a borderline, narcissistic, or other type of personality disorder, he or she can pull the entire family into a “knock-down/drag-out” litigation.  A person with a personality disorder often lacks basic compassion and/or the willingness to compromise for the benefit of the children.  He or she may be driven by revenge or the desire to inflict emotional pain and suffering — and appealing to this person’s sense of reason and logic is of no avail.  This may make it difficult or impossible to negotiate a fair settlement, leaving no alternative but to go to trial.   If you find yourself in this situation, then you need a strong advocate, an attorney who will fight hard to protect your interests.

 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, 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 you.