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.

 

How Spousal Maintenance is Determined in Arizona

Spousal Maintenance, known in many other states as “Alimony,” is the grayest of gray areas in Arizona Family Law.

Determining whether to award spousal support during a divorce is a matter of judicial discretion.  This means that it is up to the judge to decide whether an award of spousal maintenance would be appropriate, based on an examination of the facts of your particular case.  The amount and length of the spousal maintenance award is also determined by the judge.  An award of spousal maintenance may be granted in favor of either spouse, depending on whether it is the Husband or the Wife who is in need of support.

In making her/his decision, the judge will consider the factors listed in Arizona Revised Statutes, Section 25-319(A).  Factors in that section include the length of the marriage; the age of the spouse seeking spousal support; whether that spouse is able to be self-sufficient through employment; whether she/he has sufficient property to provide for her/his reasonable needs; and whether she/he is caring for a child whose age or condition makes it difficult or impossible to work.  If the judge determines that one or more of the above factors applies, then spousal maintenance may be awarded.

But there is another important part of the equation —  How much should be paid in spousal maintenance?  . . . And for how long?

For the answer to these questions, the judge turns to section B of the statute.  The problem is that there is nothing in Section B that specifically tells the Court the amount, or the duration, of a spousal maintenance award.  Instead, there is a second list of factors for the judge to consider in making his or her decision.  Here are the factors:

1.      The standard of living established during the marriage;

2.      The duration of the marriage;

3.      The age, employment history, earning ability and physical and emotional condition of the spouse seeking maintenance;

4.      The ability of the spouse from whom maintenance is sought to meet that spouses’ needs while meeting those of the spouse seeking maintenance;

5.      The comparative financial resources of the spouses, including their comparative earning abilities in the labor market;

6.      The contribution of the spouse seeking maintenance to the earning ability of the other spouse; 

7.      The extent to which the spouse seeking maintenance has reduced that spouse’s income or career opportunities for the benefit of the other spouse;

8.      The ability of both parties after the dissolution to contribute to the future educational costs of their mutual children;

9.      The financial resources of the party seeking maintenance, including marital property apportioned to that spouse, and that spouse’s ability to meet that spouse’s own needs independently;

10.    The time necessary to acquire sufficient education  or training to enable the party seeking maintenance to find appropriate employment and whether such education or training is readily available;

11.    Excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common;

12.    The cost for the spouse who is seeking maintenance to obtain health insurance and the reduction in the cost of health insurance for the spouse from whom maintenance is sought if the spouse from whom maintenance is sought is able to convert family health insurance to employee health insurance after the marriage is dissolved;

13.    All actual damages and judgments from conduct that results in criminal conviction of either spouse in which the other spouse or child was the victim.

As you can see, there is absolutely nothing in the statute that tells the judge how much the spousal maintenance payment should be — or for how long it should be paid.  Unlike child support decisions where the Court has a set of guidelines that can be used to determine the monthly support amount, there is no set of guidelines for the determination and calculation of spousal maintenance.  Therefore, the final result will depend on how each judge views the facts, and how he or she applies the statutory factors.  This leaves the door open for wide variations in spousal maintenance awards.

The bottom line is this:  It is important for a person seeking spousal maintenance to present a solid case using a “needs-based” analysis.  Thorough preparation, good organization, and a persuasive presentation will give you the best chance for success.  This is one area of law where a strong, experienced attorney can make an enormous difference.

The Law Firm of Gary Frank P.C. is an Arizona Family Law firm that has been a fixture in the prestigious Biltmore area of Phoenix, Arizona for over thirty years.  Our attorneys, Gary Frank and Hanna Juncaj, are strong litigators, highly-skilled mediators, and compassionate counselors. We handle divorce and spousal maintenance cases, as well as legal decision-making, parenting time, child support, relocation/move-away, Paternity, Grandparents’ rights and Non-Parents’ rights cases, modification actions, enforcement actions, and all other matters related to Family Law.  If you are in need of a consultation, attorneys Gary and Hanna would love to talk to you.  Please call us today.  You can reach our office at 602-383-3610, or you can contact us by email at through our website.  To learn more about our firm, take a look at our web site at www.garyfranklaw.com.  We’d be happy to help you.

YOU ARE THE ADULTS – KEEP THE KIDS OUT OF YOUR DISPUTE … PLEASE!

Mister Rogers (talking to a young boy whose parents are going through a divorce):
“I think one of the toughest things for children is for their parents not to be getting along, and so divorce feels like it’s just ripping a piece of cloth apart, and for children to try to understand that is sometimes way beyond their capacities.  So you really need somebody to help you know that both your mother and your dad love you.  It wasn’t your fault that your mom and dad don’t live together, and it won’t be your fault if they get a divorce.  As a matter of fact, you are probably one of the best things that has ever happened to your mom and your dad.  And they’ll love you as long as they live – and even longer.  But for a little child to have a mom and dad that don’t like each other, it’s very important for you to know that they still love you.”*
A divorce can be devastating for a child.  But it doesn’t have to be.  Studies show that where the parents keep the children out of the middle of their dispute, and where they are able to find a way to co-parent (in spite of their differences), then the children will likely turn out just fine.  However, this is easier said than done.  When a relationship falls apart, it is a difficult and emotional time, even for the strongest and best of us.  Fear, sadness, and anger are human emotions, and to struggle with these feelings during a divorce or separation is normal and natural.  But remember that while you, as an adult, are able to make sense of the situation and understand your feelings – a child (even a teenager) is not capable of doing so.  He or she is helpless, confused, and scared.  A child is likely to feel that the problem is, somehow, his or her fault, and often those confused feelings and a deep sense of hurt will result in defiant behavior.  Or worse.  Children who are placed in the middle of their parents’ dispute can sometimes turn that anger and defiance inward, which may cause them to think or act in self-destructive ways.
While in the midst of a crumbing relationship, it is easy for even the most loving, caring parent to be temporarily blinded by fear and anger.  Arguing in front of the children, talking bad about the other parent in their presence, sharing inappropriate information about parental problems or a divorce case, forcing children to choose between parents, demonstrating violence – these are all things that can occur during a difficult divorce or separation.  But you, as a parent, must understand that this type of behavior can have long-term negative consequences for the children.  In fact, it can cause irreparable damage and change the course of their lives.  So, what can you do to prevent that from happening?
HOW TO KEEP CHILDREN SAFE AND SECURE
As difficult as it might be during this time of extreme stress, it is up to you to constantly remind yourself that you are the adult – you are the parent – and it is your responsibility to protect the best interests of your child.  Obviously, pretending that nothing is wrong is not the answer.  That would be dishonest and not-at-all helpful.  Your child knows that something is wrong.  Most experts will tell you that the best approach is to talk to the child in a reassuring and age-appropriate way.  The key is to let the child know:  “This is not your fault.  We are your parents and, even though we are having some grown-up problems right now, we both love you and we will always be there to take care of you.”  This is a message that every child needs to hear.  It provides a sense of protection and stability that will help the child to get through this difficult experience.
But what do you do if the other parent is incapable of protecting the child and keeping him or her out of the middle of the dispute?  Answer:  Then you be the adult.  Studies show that as long as there is one stable, responsible parent who is protecting the needs of the child, then that child will likely turn out fine.  You can be that parent.  It is difficult, I know, but somebody has to take on that role – so it might as well be you.
HELP IS OUT THERE
For a parent going through a difficult divorce, separation, or custody case, please be assured that there are places you can turn for assistance and support.  Therapeutic counseling, for you and/or the children, is often extremely helpful.  For a parent facing an acrimonious split, it can feel like you are the only person in the world who has ever experienced such a thing.  But a good therapist has helped hundreds or thousands of families with similar problems, and he or she has developed a broad range of solutions that can help you, too.  Your church or synagogue can be an enormous source of support.  And there are many divorce support groups out there with people who are going through the same thing that you are now.  Through these groups, you can receive not only ideas and support, but you may also develop lasting friendships.  If your child is having problems, it might be helpful to notify the school and let them know that the family is going through a separation or divorce.  An understanding teacher or administrator can be very supportive, and many schools have psychologists who can counsel the child at no cost to you.
HOW TO AVOID FUTURE PROBLEMS
I am a big believer in counseling during – and after – a divorce.  I often recommend “Post-Divorce Counseling” for my clients.  Co-parenting after a divorce can be a new and sometimes challenging experience.  There will be times when your child is spending extended periods of time with the other parent and, while you were able to be there to supervise when you were living together, you will now be unable to intervene or even know what is happening in the other parent’s home.  This can cause the fear and stress level to intensify, which can lead to anger and miscommunication.  The best remedy, in my opinion, is “Post-Divorce Counseling.”  This is where the parents meet with a counselor on a regular basis – maybe every 6 months or every year – to discuss issues regarding the children, and to make sure that the parents are “on the same page.”  I have found that this type of counseling can help parents feel confident that they are being heard and that the children’s needs are being addressed.  It also helps the parents avoid future disputes — an all-to-common problem that often results in more trips to the courthouse, which can be time-consuming, expensive, stressful, and destructive.   
MAKE SURE YOUR CHILDREN WILL BE OK
So, there is a reason to be optimistic.  Being the child of divorced parents is no longer a stigma.  Today, it is the norm.  If you will just make the effort to assure your children that they are loved, and that their parents will be always be there for them (even if the parents are no longer living together), then it is likely that the children will grow up healthy, happy, and well-adjusted.  If you are able to co-parent, or at least keep the children out of the middle of any disputes, then their future looks bright, indeed.

Gary J. Frank is an Arizona attorney and former Judge Pro Tem with over thirty years of experience in dealing with custody and 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 through our website.  We look forward to hearing from you. 

* From the book “The Simple Faith of Mr. Rogers” by Amy Hollingsworth