IF OUR LEGAL SYSTEM WAS A GAME OF PING PONG, CHILDREN WOULD BE THE BALL

Ever since the Arizona legislature passed its new law replacing “custody” with “legal decision-making” and “parenting time” something has been bothering me that I couldn’t quite put my finger on — until today.  In reviewing the development of custody law for an upcoming trial, it occurred to me that the history of Family Law in America has always been a battle between “Mothers’ Rights” and “Fathers’ Rights.”  . . . But what about Children’s Rights?  Who speaks for them?

From the time this country began until the late 1800’s children were, from a legal standpoint, treated as property of their father.  Women had few legal rights, and when a divorce occurred, legal custody of the children was almost certain to be awarded to the father (despite the fact that the children had been raised by their mother).


That all changed at the beginning of the 20th Century. It was during this era when courts began accepting the view that children of tender years need the nurturing that only a mother could provide.  The vast majority of mothers, during that time period, remained in the home to care for children as their primary responsibility. (Of course, this was not necessarily by choice — social and legal barriers were entrenched in our society and women had few opportunities in the workforce.  As late as 1970 only 27 percent of women with children under the age of three were working.)  The “Tender Years Doctrine” almost assured that mothers would receive custody of young children in a divorce proceeding. However, it ignored the fact that fathers could be nurturers, too; and that in any particular case, the children’s father might be the better parent.


The Civil Rights and Women’s Rights movements of the 1960’s created a sea change in our society.  Barriers that had existed for centuries began to slowly crumble. Women were accepted into college and entered the workforce in increasing numbers.  As opportunities for women grew, it became more common to see families with two working parents, and by 1985 more than 50% of mothers with children under three were working at jobs outside the home.


In the 1970’s the concept of “Joint Custody” was introduced into the Family Law lexicon.  Joint Custody assumed that divorced parents should share the rights and responsibilities of raising their mutual children.  The law provided that, in making its decision, the Court was to consider the “best interests” of the children based on a laundry list of factors contained in the statute.  As joint custody gained acceptance and eventually became the norm, fathers were given a greater role in making legal decisions for their children.  The “Tender Years Doctrine” was shelved by the courts.  


Now it is 2013 and a seismic shift in Family Law has once again taken place.  Arizona has amended its statutes to remove the term “custody” altogether.  That term has been replaced with the words “legal decision-making” and “parenting time.”  This sounds innocuous, but the effect may well be that in every contested “custody” proceeding, a judge will start with the assumption (although not a legal presumption) that the parents should be awarded equal time and decision-making rights with respect to the children.  The Court is still required to make its decision based on the “best interests” of the children — but it could be assumed (unless proven otherwise) that it is in the children’s best interests to divide parenting time and decision-making equally between the father and mother.


Is this fair?  I say no.  Determining what is best for a child does not lend itself to a “template” decision-making process.  Every family is unique.  Every case is different. Therefore, every case involving children should be determined on its own merits.  Mothers should not be favored.  Fathers should not be favored.  Instead, the Court should look closely into the facts and family dynamics of each individual case to determine the outcome that best meets the needs of the children.


The children.  

What is in the best interests of THE CHILDREN? 

That should be the compass that guides the Court in making its decision.


 

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 gary.frank@azbar.org.   We’d be happy to help you.

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.


 

BABY VERONICA CASE TAKES A HEARTBREAKING TWIST

I have written several times over the past year about the Baby Veronica case.  As an infant, little Veronica was given up for adoption by her birth mother after it appeared that the father had abandoned her.  However, the father. who was part Native American, later asserted his custodial rights under the Indian Child Welfare Act.  In 2011, a South Carolina family court judge ruled in favor of the father.  As a result, the child – who had now lived with her adoptive family for almost all of her two years – was ripped out of the arms of the only mother and father she had ever known.  She was placed in the car of a man who was a stranger, and was driven away.  

The adoptive parents appealed, and the decision was ultimately overturned.  An appeals court ruled that the child must be returned to the adoptive parents.  The father then appealed to the highest court in the land, the U.S. Supreme Court, which decided not to intervene.  That meant the prior ruling would stand.  It was final.  The case was over. 

Baby Veronica – who had by now lived with her biological father for more than a year, and had probably bonded with him – would have to be returned to her adoptive parents.

But that’s not the end of the story.

When the time came for the biological father to hand the child over, he was nowhere to be found.  The Sheriff’s Office in Charleston, South Carolina issued a warrant for his arrest.  On Monday, the father turned himself in.  He was taken into custody and later released on a $10,000 bond.  

Then, after his release, the father once again, disappeared — and Baby Veronica is missing.

Over the weekend, the father told CNN that he is willing to go to jail.  “I’m going to fight till I have no fight left in me and till they say you can’t fight no more. This is my daughter.  It’s not a yo-yo that I can just say, hey, I borrowed it for two years and here’s it back.”

The adoptive parents are grief-stricken.  They recently gave this statement:  “With every passing hour, we fear more and more for her safety and well-being.  If anything should happen to our daughter while she’s being left in the hands of those who hold her captive from us, the responsibility will be shared by many.”

Meanwhile, Baby Veronica remains in the eye of the hurricane.  She is the innocent victim here.  This poor child has been bounced back and forth like a ping pong ball.  Each time she has the chance to bond with an adult caregiver, she is yanked away and handed to someone else.  By now, she may have developed emotional scars that could last a lifetime.

This is a stunning example of how children can fall through the cracks of the legal system.  Father’s have rights.  Mother’s have rights.  Grandparents, and step-parents, and biological parents, and adoptive parents all have rights.  But in the process of asserting those rights, sometimes the best interests of the child are forgotten.  Sometimes, while the war is being waged in one courtroom after another, children like Baby Veronica are damaged.  And when that happens, it affects us all. 


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, child support, spousal maintenance, 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.


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.


YOU CAN OBTAIN A DIVORCE WITHOUT EVER STEPPING FOOT IN A COURTROOM

For many people, the scariest part of getting a divorce is having to walk into court and appear before a judge.  But did you know that there is a way to obtain a divorce without ever stepping foot in a courtroom?  It’s true.
When I began practicing law, it was impossible to obtain a divorce without at least one party appearing in court and providing testimony.  Even when a couple had reached an agreement on all their issues, one of them was required to appear before a judge and testify under oath.  But that is no longer necessary.

Resolving a divorce case can involve having to negotiate many different issues.  These could include division of property, division of debts, legal decision-making (custody), parenting time, child support, spousal maintenance, and other matters.  Parties who cannot come to an agreement have no choice but to battle it out at trial.  This can be a long and expensive process, with the final decision being left to the judge.  However, for those who are able to take matters into their own hands and negotiate a resolution of the issues, finalizing their divorce can be a simple matter.
The Maricopa County Superior Court has a “Consent Decree” procedure which allows parties to submit their final Decree / Settlement Agreement to the judge without having to make a personal appearance in court.  In order to use this procedure, the parties must be in complete agreement on all the terms of their divorce.  A written Consent Decree must be prepared, and it must be signed and notarized by the parties.  The Consent Decree must contain the terms of the parties’ agreement, as well as the necessary jurisdictional language required by Arizona law.  Both parties must have paid an appearance fee to the Clerk of Court, or had the fee waived.  The signed Consent Decree must then be delivered to the judge assigned to the case.  If the judge deems the terms of the Consent Decree to be fair and reasonable then she/he will sign the document, the Consent Decree will then be filed with the Clerk — and the divorce will be finalized without the parties ever having to appear in court.

For couples who are able to negotiate a resolution of their issues, the “Consent Decree” procedure can make divorce a relatively painless process.


Gary J. Frank is an attorney and mediator with over thirty years of Family Law experience in dealing in divorcecustody, and parenting issues. For many years he acted as a Judge Pro Tempore in the Maricopa County Superior Court, which gave him an insight into the inner workings of the courts that many attorneys lack.  His office is located in the Biltmore area of central Phoenix, with satellite offices in Scottsdale and Paradise Valley, Arizona.  He can be reached by telephone (602-383-3610); or by email at gary.frank@azbar.org.  You can also reach him 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.


WHY IS STEVE NASH TRYING TO STOP HIS EX-WIFE FROM MOVING WITH THE CHILDREN?

At first it sounds like a typical “Relocation” battle:  A father is asking the Court to prevent his ex-wife from moving out of Arizona with the children.  But this is not a typical Relocation case.  This one involves basketball superstar, Steve Nash.  And he isn’t trying to stop his ex-wife from moving the children further away from him – He’s trying to prevent her from moving them to Los Angeles, where he lives! 

Nash wants the judge to prevent the mother of his children from moving the kids closerto his home!

Sadly, this case isn’t about the children.  It’s about money.  You see, when Steve and Alejandra Nash divorced in Arizona, the former Mrs. Nash received millions in the settlement and, therefore, the Decree did not award her child support.

But now the mother of the Nash children wants to move them to California, where their father plays for the Los Angeles Lakers.  Alejandra Nash claims that the children miss their father and would like to spend more time with him.  Steve Nash, on the other hand, claims that the mother is an out-of-control spender, and that she wants to relocate purely for selfish reasons.  He believes that once she settles in Los Angeles, she will ask the California Court for an order requiring him to pay substantial child support, which was not contemplated in the divorce settlement, and which the children do not need.  (Indeed, at a recent court hearing, Alejandra admitted that if allowed to move to California, she will seek child support.)

So, what we have here is a mother who wants to relocate with the children for the purpose of obtaining child support, on top of the millions she already has in the bank . . . and a father who is attempting to keep the children further away from him, so as to prevent their mother from from asking for more money.

In the end, we’re left with one simple question:  
Is anyone thinking about what is best for the kids?”

http://www.azcentral.com/sports/showusat.php?id=2373997



Gary J. Frank is an Arizona attorney and former Judge Pro Tem with over thirty years of experience in dealing with parenting issues in Family Court.  If you are in need of a consultation regarding divorce, child custody, or any other area of Family Law, please do not hesitate to contact us by telephone (602-383-3610) or by email at gary.frank@azbar.org, or through our websiteat garyfranklaw.com.  We look forward to hearing from you. 


FIVE TIPS FOR MAKING A GOOD IMPRESSION IN COURT

When you walk into a courtroom for your divorce or custody trial, you are literally placing your future, and everything that is important to you, in the hands of a stranger.  The judge doesn’t know you, but over the next few hours she/he is going to listen to your testimony and consider the evidence you present – and weigh it against the testimony and evidence presented by your opponent.  Then the judge will make a ruling that could alter the course of your life in a good way – or maybe a not-so-good way.
Obviously, having an experienced, skillful attorney is critically important.  But is there anything that you, personally, can do to increase the odds of winning your case?  The answer is a resounding “Yes.”
Here are five tips for making a good impression in court:
1.         DRESS NICELY:      All your life, you’ve heard about “the importance of making a good impression.”  It has been repeated so often that it has pretty much become a trite phrase.  But ignore it at your peril – because that old, worn-out saying happens to be true.  Judges are human.  Your judge will form an impression of you, and the initial impression might be based on your appearance.  Whether that is fair or unfair – right or wrong – doesn’t matter.  It’s a fact.  So, why take a chance?  Dress nicely.  You don’t need to (and shouldn’t) look like you’re ready for a walk down the “Red-Carpet” – that would be overdoing it.  Just a clean, attractive attire is sufficient.  Something a judge would see as appropriate and respectful.  Why should you care?  Because it is the judge who will decide your fate.
2.           BE PREPARED:     There is no substitute for being prepared when you take the witness stand.  In Arizona, Family Law cases are tried to the judge.  In other words, your judge will be acting as both judge and jury.  The Family Court judge’s role is not only apply the law, but also to determine the facts.  You can increase your odds of prevailing by being well-organized and well-prepared.  If you are represented by counsel, your attorney will assist you in preparing for your case.  He or she should spend a great deal of time, before the trial, discussing your objectives, and preparing you for your testimony, so that you can effectively tell your story.  The attorney should also prepare you to withstand the opposing attorney’s cross-examination.  If you are well-prepared, you will be more confident, and you will be much more likely to create a good impression.
3.         BE ATTENTIVE:        Paying attention to the proceedings, and listening to what the attorneys and the judge are saying, can give you an important edge in your court case.  Trying to follow what is happening in the courtroom can give you important clues into what the judge is thinking, and the type of evidence that he or she is looking for.  When you know how the judge is leaning, or what she/he wants to hear, then you can make adjustments “on the fly” and tailor your presentation to achieve the best results.  Not uncommonly, it is the client who picks up on something important that her (or his) ex- says on the witness stand – and by pointing it out to the attorney, the client might be able to change the outcome of the case.  An attentive and engaged client can help the attorney immensely.  So be attentive.
4.         CONDUCT YOURSELF APPROPRIATELY:       How you conduct yourself in the courtroom can determine whether you win or lose.  Keep in mind that throughout the proceedings, the judge is sitting up there on the bench looking down at the participants — and watching you.  Your attorney may be making a strong legal argument, but if you are slouching in your chair, signaling to a spectator in the gallery, sending a text message on your cell phone, not paying attention, or acting in a manner that the judge feels is inappropriate, you are undermining your lawyer’s efforts to represent you.  There is one particular type of behavior that judges roundly hate:  and that is when a client sits at the table and makes faces as the opposing party testifies from the witness stand.  If you think that vigorously shaking your head or laughing derisively will help the judge understand that the other party is lying, you are dead-wrong.  This type of behavior is much more likely to turn the judge against you.  So when in the courtroom, conduct yourself appropriately at all times.
5.         CREDIBILITY IS THE KEY.            The most important asset you have in a court case is your integrity and your credibility.  Where two parties to a litigation are telling stories that are contradictory, a judge will tend to rule in favor of the litigant that is the most believable.  Have you ever watched Judge Judy, or another of the TV judge shows?  While those shows are not at all similar to a real court case, there is still something that can be learned from watching them.  The lure of these shows is that when you are watching the people present their cases, it is as though you are seeing the matter from the same perspective as the judge.  Two people come before the Court.  Each has a completely different story and we, the viewers, are the “trier of fact.”  We know that one of the parties is twisting the facts, but we don’t know which one.  We listen intently and try to determine the truth.  If one of the parties is caught in a lie, or if a party is unprepared and doesn’t seem to be consistent in reciting the facts, then we start thinking that this person cannot be believed.  On the other hand, if a party is well-organized and appears sincere, we tend to lean in her favor.  In the end, we will rule in favor of the person who seems to be telling the truth.  And that is what the judge will tend to do in your Family Law case.  I cannot emphasize enough the importance of telling the truth; of being well-prepared; and of dressing and acting appropriately and respectfully.  It all comes down to credibility.  When you step into that courtroom, make sure that you are the one the judge sees as being the most credible and believable litigant.

Hiring a strong, experienced attorney to represent you is important — but always keep in mind that you and your lawyer are a team.  You can help yourself, and increase the odds of winning your case, by simply making a good impression. 


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.

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)



THE BABY VERONICA CASE IS NOW BEFORE THE U.S. SUPREME COURT

The case involving the adoption of Veronica is before the U.S. Supreme Court.  It is a heartbreaking case that pits state adoption law against the Indian Child Welfare Act.  There are legitimate legal interests on all sides.  Until the 1960’s Native American children were often stolen from their mothers in hospitals shortly after birth, and given up to Anglo families for adoption. Sometimes the “kidnappers” were state agencies.  The Indian Child Welfare Act was enacted for the purpose of correcting this injustice.  The Act takes precedence over state adoption laws and gives tribal courts the right to determine adoption placement of children of Native American heritage.

But in the case of baby Veronica, did the sharp focus on legal issues, jurisdiction, public policy, and politics cause the courts to lose sight of the most important thing of all – the best interests of a child?

This case starts out like many others: A woman becomes pregnant.  The father isn’t interested in taking responsibility for parenthood.  The mother decides to place the baby for adoption. The father signs away his parental rights.  The baby is born and is placed with adoptive parents.  But four months after the baby’s birth, this case takes an abrupt turn.  The father changes his mind, claiming that he thought he was signing away his rights to the biological mother, and that he never knew the baby would be placed for adoption (note: he had abandoned the mother during her pregnancy and made no effort to see the child, or pay support, after the child was born). 

Because the father was a member of the Cherokee Nation, he invoked his rights under the Indian Child Welfare Act and asserted that he was entitled to full custody.  (The mother was not Native-American.)  In December, 2011 the South Carolina Courts ruled that the Indian Child Welfare Act trumped state law.  Baby Veronica, now two years old, was ripped out of the arms of the adoptive parents who had loved her and bonded with her; and she was handed, screaming hysterically, to a man she had never met.

The adoptive parents appealed, and today the case is before the U.S. Supreme Court.  This is a matter in which the interests on both sides are legitimate and compelling.  You can read an excellent examination of the competing views in the NPR article at the following link:  http://www.npr.org/2013/04/16/177327391/adoption-case-brings-rare-family-law-dispute-to-high-court?utm_source=NPR&utm_medium=facebook&utm_campaign=20130416=.

Hopefully, the nine Supreme Court justices will be able to cut through the thick fog of politics and legal issues, and come up with the best solution for this one young, innocent, child – Baby Veronica.




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.

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

I am frequently asked at what age children can decide where they’d like to live, and whether or not they want to spend time with a parent.  The answer to that question is that children under the age of majority are not allowed to make those kinds of choices on their own. Those are decisions for parents — and when the parents can’t agree, a judge will make the decision.  But although children are not given the right to make these crucial choices, their voices can be heard — and the courts are listening.

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

Judges have the right to interview children, but they rarely do so.  It is even more rare for children to be allowed to testify in a Family Court trial or hearing.  However, it is common for a judge to appoint a behavioral health expert to interview the children (and sometimes the parents) and make a report and recommendation to the Court.  There are a number of different ways that this can be done.  For instance, the judge can order the parents to participate in a Parenting Conference, or a Family Assessment; or the judge can order a Custodial Evaluation (either limited or full-scale).  The custodial evaluation process results in an in-depth investigative report and recommendation to the Court, and it may include psychological testing.   The purpose of each of the above-options is to assist the Court in developing the best custody and parenting plan for the children.  In doing the interviews, the experts will also be on the look-out for signs that a parent is coaching the children and/or attempting to alienate them from the other parent.

In high-conflict cases, the Court may also appoint a Parenting Coordinator, or even a separate attorney to represent the children.  The option that the Court ultimately selects will depend on a number of factors, including the level of conflict; the types of issues presented; how complicated those issues are; what kind of evaluation the parents want; and, to some extent, what the parents can afford.  

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

Gary J. Frank is an Arizona attorney and former Judge Pro Tem with over thirty years of experience in dealing with custody and parenting time issues in Family Court.  The issues in this blog are provided general informational purposes only and should not be relied on as legal advice in your particular case, nor should it be construed as forming an attorney-client relationship.  Every Family Court case is unique.  If you have a matter that appears similar to any of the scenarios that you read in this blog, you should be aware that: (1) even a slight difference in a factual situation can lead to a vastly different result; and (2) the laws are constantly changing and new laws are continually being enacted.  
Legal advice cannot be given without a full consideration of all relevant information relating to your individual situation.  Therefore, if you have an important legal issue, you should obtain a consultation with a qualified attorney.  To schedule a personal consultation with Mr. Frank, you may contact us by email at gary.frank@azbar.org, or through our web site at www.garyfranklaw.com.