ARIZONA’S FAMILY COURTS ARE OPEN, AND OPERATING EFFICIENTLY, DESPITE COVID-19

 

In the midst of the pandemic, you may be wondering how your family law matters will be affected by court closures and the constantly changing regulations caused by COVID-19. The Arizona courts are committed to minimizing spread of the virus and creating the safest environment possible while still serving the needs of the community. While family law matters are normally not an exciting part of life, sometimes they are necessary. If you are facing a family issue, such as a divorce or custody matter, a grandparent visitation dispute,  a relocation (move/away) request, or a modification or enforcement case that may need to be handled by the courts, rest assured that the Court’s COVID procedures and modification of in-person requirements will not prevent the work from getting done to help lead to a solution for you and your family. When we meet with you, we will cover all of the major points to help you understand how COVID-19 is impacting the family courts. If you want to check out the guidelines directly from the Arizona Courts here is a link.

The first thing you should know is that the family department will continue to address “essential services” in person. These include applications for orders of protections, contested hearings on orders of protection, motions for temporary emergency orders, and hearings on temporary emergency motions. In person court appearances do require the use of a mask and social distancing. Other court hearings may be held in person at the discretion of the judge.

Although emergency proceedings will continue in person, other matters are equally important. In this new era of Zoom meetings and video-conferences, the court system has adapted its process to be conducted via GoToMeeting. GoToMeeting is a secure platform that allows the judge to interact with the attorneys and the clients in a similar fashion to how they would in person. If you have an early resolution conference, mediation, open negotiations, decree on demand, parenting conference, or even a contested hearing or trial scheduled you can plan to take your video call from the comfort of your home via GoToMeeting. You’ll need to download the app, and although there is sometimes an occasional wifi related glitch, the court system and your attorney will proceed as usual in order to create a meaningful outcome.

In the early weeks of COVID-19, some cases were faced with delays and rescheduling. By now, the courts have managed to get things back on track and proceed as usual. In many instances, the Coronavirus may catapult the Arizona court system into a more modern era of technology. A video conference means dodging the stress of the courtroom, avoiding downtown traffic and parking, and preventing you from having to take unwanted time off from work for in-person court appearances. In the future, some types of court matters may be conducted by phone or video-conference permanently, even after the COVID-19 pandemic has become a thing of the past.

With the recent increase of COVID cases in Arizona, the courts have not determined when things will return to the way they were before. For now, and into the foreseeable future, the courts will operate telephonically and by video-conference as much as possible. But, in the meantime, your family law matter will continue to be a productive and meaningful process until a solution is reached.

 

At the Law Firm of Gary J. Frank P.C., both Gary Frank and attorney Hanna Amar 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 Amar 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. Hanna is the President of the Young Lawyer’s Division of the Maricopa 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 actions, 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.

 

 

 

There’s A “Bright Side” To This Pandemic – Seriously!

 

Downtown Phoenix by sunset

In case you’re living under a rock, the whole world, including our country, has been taken over by COVID-19, better known as coronavirus. This virus came crashing down, in what felt like the blink of an eye, and it has altered how we live, how we think, and how we interact with our loved ones. The way we grocery shop has changed. The way we greet neighbors has changed. The way we celebrate holidays, the way we run our businesses, and the way we practice law have all changed.

It has been drastic for some, but the impact is being felt by all. Some are living in constant panic, while others believe it to be an overreaction. Some of our lives have been turned upside down by this new way of living, while others are angered that they are living in restriction. No matter how you feel, or what you believe to be right, one thing is certain: we can all choose to look on the bright side of this pandemic.

We are being forced to slow down. What’s the bright side? You finally have time to breathe. Life is full of chaos and stress, even without a pandemic. Many of us live our whole lives in a stressed state of mind, which leads to physical illness and overall lack of enjoyment of life. Pre-pandemic, if you wanted to slow down, you might have been criticized for being lazy. Now is an opportunity, without any judgment, to be slow, be present, be grateful, and breathe.

We are being forced to change the way we work. What’s the bright side? We are making significant modern-day changes to an old-time profession. Most attorneys do not work from home. Most attorneys do not videoconference their clients. Most attorneys are not cloud based. In a world where traveling the county and printing more paper than you can carry is on most of our job descriptions, these over-due changes may be the start of something new, and efficient, for our profession even after the pandemic has passed.

We are being forced to spend time with ourselves. What’s the bright side? You finally have the time to think about what actually makes you happy, what doesn’t make you happy, and to adjust your life accordingly. Before the pandemic, we took many things for granted. We made commitments we did not want to make, we spent time with people we did not want to spend time with, and many of us (especially if you are an attorney) put ourselves at the bottom of our priority list. Now is the time to make the change. Make self-care a priority. Make yourself a priority.

We are spending more time with our families. We are going outside for exercise instead of the gym. We are putting less pollution in the air. We are focusing more on our health. We are learning new things. We are reading more books. Some of us are undoubtedly living better lives.

This does not mean we are living at the expense of others. Those that have lost their lives due to this virus, and any virus or disease for that matter, are loved, respected, and remembered always. And what better way to honor those that have lost their lives than to appreciate and implement the knowledge, growth, and positive changes that came along with the loss?

This is still a pandemic. There is still great concern of what is happening in our world. And there is still the choice to be positive. There is always a bright side. And you can choose to ignore it if you want. But imagine how you can transform yourself, your happiness, and your way of life during these unprecedented times.

Hanna Amar

 

Hanna Amar is a partner at the Law Firm of Gary J. Frank P.C.  Both Gary Frank and Hanna Amar 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 Amar 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. Hanna is the President of the Young Lawyer’s Division of the Maricopa County Bar Association.  Our firm handles 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 actions, 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.

BUSINESS AS (UN)-USUAL

Need help? We’re here. Because even in the midst of all the current chaos with COVID-19 and social distancing, life goes on. People still have to shop for basics. Parents still need to find a way to make sure their children continue their education. And those lucky enough to have jobs still need to work. Our world has been shaken to its core. Many of our usual routines have been disrupted, maybe permanently. The world seems to be filled with anxiety and uncertainty.

In the meantime, for many people who are stuck in rocky relationships things are not getting better. In fact, they are getting worse. And questions abound: Is divorce still an option? For parents who need to make adjustments in legal decision-making or parenting plans – can they file with the Court to modify their existing orders? Can a parent sue to enforce existing orders that are being violated? Can a parent who needs to move with the children file for relocation? For grandparents who are being blocked from seeing their grandchildren – can they ask the Court to award them visitation or custody? Can a parent who has lost their job file for a modification of spousal maintenance or child support? — The answer to all these questions is “Yes.”

Through all the chaos of the coronavirus pandemic, the courts are still open and functioning (although they are functioning slightly differently, as will be discussed below). Judges are still accessible. Cases are still being filed. Trials and contested court hearings are still taking place. You can still get your needs met in the Family Division of the Maricopa County Superior Court.

Of course, procedures have been put in place in the courts that are designed to keep people safe. For instance, on a temporary basis, non-evidentiary hearings (those where it is not necessary to present evidence or testimony) are now being held by telephonic conference call with the Court, rather than the parties and attorneys having to appear in person. And trials are generally being postponed. However, Emergency Custody matters, and Order of Protection hearings are being held in-person, as before.

The bottom-line is that people can (and are) filing for Divorce; Modification of Legal Decision-Making Authority; Modification of Parenting-Time; Enforcement of Orders; Relocation; Grandparent Visitation or Custody; Establishment of Paternity; Child Support, and Spousal Support, etc. The courts are open and functioning. They may not be operating as normal, but they are operating efficiently. You can still get what you need.

Our office is open and functioning efficiently, as well. Our attorneys are primarily working from home offices, as are many people, and we are handling most client meetings by video-conference, such as FaceTime, Skype, Zoom, or Google Hang-Outs – or by phone – but we are just as available and accessible as we’ve always been. Our office in the Biltmore area of Phoenix remains open and is still available for conferences, depositions, mediation, etc.

Life doesn’t stop, even in the midst of the current disruption. If you need us, we are here for you.

 

At the Law Firm of Gary J. Frank P.C., both Gary Frank and attorney Hanna Amar 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 Amar is a highly-skilled attorney both in the courtroom and at the negotiation table, with a passion for Family Law and children’s issues. She is also a certified mediator. In addition, Hanna is the President of the Young Lawyers Division of the Maricopa 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 actions, 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 garyfranklaw.com.  We look forward to hearing from you.

Prenuptial and Postnuptial Agreements: Kiss of Death or Wise Decision?

 

Without a doubt, marriage can be an incredible and happy time for a couple. However, it is important to remember to protect yourself and your assets, and to be forward thinking. The most common way for a person to do that is through a prenuptial or postnuptial agreement (better known as a “prenup” or “postnup”).

The main difference between a prenuptial agreement and postnuptial agreement is the timing of when it is signed. A prenuptial agreement is prepared and signed prior to the marriage being consummated. A postnuptial agreement can be done any time after a couple is already married.

Within both a prenup and postnup, the couple can decide how to handle a variety of topics, if the relationship were to end. These topics may include whether money or other assets are to be considered community property or the separate property of the person who earned or owns it. It may also include how property is to be divided in the event of a divorce; or a determination of how much spousal support will be paid (or that no spousal support will be paid at all). However, courts will not honor any part of an agreement that is unconscionable or might violate public policy (if there is a clause that does not allow a spouse to gain weight, for example), or that limits any rights regarding a child or future child (for instance, spelling-out who will have decision-making authority for a child, or limiting the amount of child support that could be awarded, may be ignored by the Court).

In the past there was a social stigma around these types of agreements. People would ask: “Why would you possibly go through with a marriage, when you are already planning for it to fail?” But today prenuptial and postnuptial agreements are accepted and commonplace. The real advantage is certainty. These agreements are a way for a couple to come together, amicably, and decide a potential future for themselves. Prenups and Postnups are increasing in popularity and the stigma has all but disappeared.

The legality of a prenuptial or postnupial agreement is codified in Arizona state statutes ARS §25-201 through §25-205, and in order to be valid and enforceable there are a few requirements. The agreement has to be signed by both parties, executed voluntarily, and be in no way unconscionable at the time it was executed. An example of an agreement being unconscionable would be if one spouse does not reasonably disclose property or other financial obligations, or if a party signed the agreement under duress or coercion. There is no requirement that the agreement has to be executed by an attorney, nor any formal requirements as to formatting. However, as mentioned previously, the agreement will not be honored by a court if it is unconscionable, or if elements of the agreement are contrary to public policy.

If you are interested in learning more about prenuptial or postnuptial agreements, please do not hesitate to contact us for a consultation. We can be reached at 602-383-3610 or by email at [email protected] or [email protected]

 

At the Law Firm of Gary J. Frank P.C., both Gary Frank and attorney Hanna Amar 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 Amar 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.

 

The information contained in this blog post is provided for informational purposes only, and is not intended to be, nor should it be construed as, legal advice. Reading this information does not constitute an attorney-client relationship. For advice regarding your individual situation, you should consult with an attorney. To schedule a personal consultation, you can contact us at 602-383-3610 or reach us by email at [email protected] or [email protected].

 

MILLENNIAL MARRIAGE AND DIVORCE RATES HAVE PLUNGED — WHAT’S THE REASON WHY?

I recently posted a news article on our Law Office Facebook page about Millennial Marriage and Divorce. It discussed how the divorce rate for Millennials has gone down, but that the percentage of Millennial marriages has also dropped. Millennials are marrying later in life, and many are not marrying at all. Rather, they are moving in together and cohabiting without marriage. The article examined some possible reasons for this. Later, I received a very intelligent and insightful post from a Millennial reader who took a different view of the reasons behind the dip in marriage, and divorce, rates. Here is our thoughtful exchange:

READER:

I have a lot of thoughts about the last article you shared on your law page… I haven’t fully formed them yet but I feel like there’s something missing in that analysis, like how my generation views legal marriage as largely outdated in general (outside of financial protection in specific circumstances, or children), and the potential for divorce as more financially threatening than not being married in the first place. And growing up in a time where statistically you had a 50-50 shot of your marriage ending in divorce (which also means that half the people in relationships went through a divorce with their own parents), the odds were never in our favor. Which is maybe why wealthy people are more likely to take the plunge. I have a number of friends who had the wedding and never signed any papers. I think this article is missing a big cultural piece that can’t be inferred by numbers alone.

Maybe the author should have talked to some millennials instead of just looking at the data.

Also it’s hard to ignore that this drop in the number of marriages happens to correspond with the number of women enrolled in college surpassing the number of men…I didn’t notice that addressed in the article either but it seems like that’s probably not a coincidence considering the traditional motivations for marriage, like financial dependency, gender norms, and the end goal of mothering as a societal inevitability.

GARY FRANK:

Great insight and comments. I love hearing your views! I’ll reply soon.

GARY FRANK:

OK, here’s my take: I think one could make a strong case that from a cultural and societal perspective, the institution of marriage is pretty much outdated and irrelevant. It has significance from a religious perspective, but only for those to whom religion is important. But here’s the thing — over the years, in this country, a whole complicated network of laws has developed around the concept of marriage. An important one (in Arizona and other western states) is the theory of “community property,” which stands for the proposition that when a couple marries, everything acquired by both of them, or either of them, after the marriage is considered to be community property, and is owned by each of them 50/50. This includes their incomes from employment. So, for instance, if after the wedding one spouse takes their paycheck and puts money down on a new car and then pays the payments with his/her salary, the car is “community property” and belongs to both spouses 50/50 (even if the purchasing spouse puts the title in their own name). The same is true for monies deposited into bank accounts, investment accounts, retirement accounts, etc. And also for purchases of a house, and furniture, etc. It even applies to businesses formed after the marriage. They belong to both parties 50/50 (there are some exceptions and variables that could change the equation, but I won’t go into them here). — However, if the parties were not married, there is no community property. Everything that one partner saves, purchases, or acquires will be his/her separate property; and everything the other partner saves, purchases or acquires will be that partner’s separate property. Nothing will be shared unless the item is titled in the names of both parties as joint owners. If the parties break up, each will be entitled to their property. In the case of a relationship where one person far out-earned the other (and especially in a long-term relationship where one person was a stay-at-home mom or dad and was not employed outside the home), the poorer party could walk away with essentially nothing, while the richer party gets it all. This result is a horrible inequity.

Spousal Maintenance is another thing that is only applicable where a couple was married. If a married spouse gives up her or his career to stay home and care for the children, and the parties later divorce years or maybe decades later, then that spouse could be entitled to an award of spousal maintenance (alimony), possibly for a number of years or even for a lifetime. Spousal maintenance will provide economic stability for that person until she/he can establish a career and become self-supporting. But if the parties never married, then the person who gave up her/his career for the benefit of the family will walk away from the relationship without any financial support at all, because the Court can only award spousal maintenance where a marriage existed. This could mean falling from a comfortable standard of living into a life of poverty.

And until recently, you could only cover a spouse on your health insurance, but not a cohabiting partner.

In the area of Estate Planning, if a spouse dies leaving no will, the surviving spouse is entitled to a share of the decedent’s estate — but an unmarried cohabiting partner (even of 30 years) would be entitled to nothing unless a valid will exists with a provision giving a portion of the estate to that person. 

P.S. – With regard to custody of children (legal decision-making and parenting-time) marriage is not much of an issue. A person can establish parentage (usually by DNA testing) whether married or not; and can then obtain court orders for child custody, parenting time, and child support. There are so many children born today to unmarried parents that it is almost the norm. The law had to adjust to that reality, and it did. Maybe someday laws will be made to protect people who are cohabiting but not married.

READER:

Thanks for the thorough response, but you obviously missed where I said “except for certain financial situations.”

GARY FRANK:

Nope, I didn’t miss it. I just wanted to explain for you, and others who might be reading this, how those “certain financial situations” can be pretty significant. But I do agree with your premise that Millennials tend to view marriage as an outdated institution, and for good reason. — The example set by my generation made it that way.

READER:

Also maybe if women are starting to be more educated than men and have more assets it’s possible they don’t want to split them with a spouse in the case of a divorce. Just saying.

GARY FRANK:

I completely agree.

READER:

I think I also read a study once that said that even though the stereotype is that women want to get married more than men, the opposite is actually true.

Probably because men invented the stereotype.

GARY FRANK:

Haha! Probably true!

 

 

The law firm of Gary J. Frank P.C. offers strong advocacy for clients involved in Family Law disputes, including divorce, custody, parenting time, inter-state custody or visitation, division of property and businesses, spousal and child support, modification of existing orders, enforcement of orders, relocation / move-away cases, grandparent and non-parent custody and visitation, paternity, child abuse, dependency actions, guardianships, and other matters involving children and families.  Our attorneys, Gary Frank and Hanna Amar, are experienced courtroom litigators, as well as mediators, who bring skill, compassion, and a depth of understanding to each matter they handle, and each client that they represent.  Our office is located in the prestigious Biltmore area of Phoenix, Arizona; and we have satellite offices in Scottsdale, Paradise Valley, and Tempe, to more conveniently serve our clientele.  You can reach us through our website at garyfranklaw.com; or by telephone at 602-383-3610.

 

 

 

 

 

 

 

 

 

Financial Abuse: The Elephant in the Room

 

By Guest Blogger:  Michelle Buonincontri, CFP®, CDFA™

Part1 – Financial Abuse, Abuse REALLY?

Financial Abuse: the elephant in the room

Financial abuse can be a subtle manipulative, ‘wooing” process that wears us down slowly so that we start to normalize the behaviors. Or it can be overt, demanding, intimating or a combination of all the above. It begins in the dating phase, and it un-hooks us from our “gut brain” or intuition. I’ve seen this increasing and occurring repeatedly with too many smart, educated women as women continue to earn more and advance in the workforce – myself included, which is why I want to address this important topic. It’s not just the stay-at-home mom.

In its most straightforward form, when one person deprives another access to financial resources or the ability to make money this is called economic abuse. Financial abuse can also be a partner dissipating finances for personal uses or guilting their partner into agreeing to financial decisions they are not comfortable with. Any erosion of the financial health of the partnership which depletes another’s access to resources in the long-run is a form of this abuse. Controlling or depleting resources creates a dependency, which is a way to control a partner from leaving the relationship.

Unfortunately, when most women get to this point, they have already ignored so many warning signs and are now in the fire and asking “How did I get here?”.

Impact

Research shows that victims eventually become so concerned with how to provide for themselves and their children financially that they feel trapped and stay. It also shows that financial insecurity is one of the top factors that women return to these relationships. Most times, emotional abuse accompanies economic abuse and victims feel inadequate and unsure of themselves as self-worth erodes over time and confidence wanes. It can also leave the partner vulnerable to physical abuse as well.  They take on the responsibility of trying to “fix-it”, “make it work”, as their partner has used ignoring, manipulation, sabotaging, belittling them or their family, gaslighting etc. to make them question their worth and power. Because it was found that 99 % of domestic violence cases also involved financial abuse, according to a study by the Centers for Financial Security, young women need to be made aware and educated about “this elephant in the room”.

How can having a budget be wrong?

Having a budget, a spending plan, and knowing your cash-flow is awesome – but both parties need to agree and have this knowledge. If one partner is hiding purchases for fear of reprisal, one partner can’t control their spending (retail, gambling etc.), or one partner conceals the financial information as they are “handling everything” or “better at it, than the other partner” there is a problem.  Saying, “I’m just trying to be responsible” could be a way to justify abuse. A good test would be to ask yourself, ”Are both of us, as partners,  sacrificing equally?” Unequal resources or unequal decision making can be a sign of unequal financial control.

But I make more, shouldn’t I have more say?

Earning more than another does not give someone the right to deprive another. Everyone is entitled to food/clothing/ shelter and partnership in a relationship. After those things are provided, discretionary expenses (like dining out, Starbucks, vacations etc.) should be agreed to together in a healthy relationship. There should be joint decision making with your partner.

As family values have eroded, this sentiment seems to become more and more prevalent. I see this even in long term marriages when working with couples that divorce. All of a sudden they seem to “forget” the agreements they made and kept while married. This is why it so important to understand your ”Money Mindset”,  values, the financial history & status of you and your partner while dating, before co-mingling assets. Having conversations and outlining these values and priorities in a more formal way, with a pre/post-nup agreement in marriage or a contract of sorts in a  domestic partnership agreement can be key to the success of that relationship.

What now?

Splitting”, by author Bill Eddy, is a great read that discusses pattern recognition, strategies for dealing with high-conflict partners and navigating the maze of negotiating and separating from these individuals more successfully. Click here to listen to Mediation Talk, as I discuss “How to Recognize Financial Abuse” with Host Diann Wilson. Learn the financial warning signs in dating, marriage and tips on how to protect yourself financially in the upcoming Blog – Part2 – Financial Abuse- What women need to know

If there is concern and you do not have a trusted counselor, pastor or qualified professional who can help, you can contact the National Domestic Violence Hotline at 1-800-799-SAFE.

 

Michelle Buonincontri, is a Certified Financial Planner™(CFP®),Certified Divorce Financial Analyst (CDFA™) and founder of Being Mindful in Divorce. As part of her commitment to families in reducing the emotional and financial impacts of divorce and promoting alternative resolution models, she is trained as a Mediator and a Collaborative Divorce Financial Neutral; working with singles, couples and as a family law case expert. Michelle is also a Leader of the 2nd Saturday Divorce workshops, and a volunteer at Fresh Start Women’s Foundations and Savvy Ladies. Michelle may be reached at 520-369-3380 or [email protected]

This article is not meant as counseling, investment, tax or legal advice, but rather information. It is always advisable to seek out and work with a qualified professional in their area of expertise to determine your unique situation and what particular options are available to you.

 

 

 

It Does Not Take Two To Tango — Dealing Personality Disorders

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.  Our firm brings many different strategies to the table when dealing with an opposing party with a personality disorder. For instance, sending out subpoenas for medical or counseling records will allow us to obtain important information on the person’s physical and psychological background; Drug testing may be warranted if there is a history of drug or alcohol abuse; A deposition can give us great insight into the mind of the person being deposed — it can enable us to obtain admissions of guilt, and it will also give us clues which may lead to other critical information that can be successfully utilized at trial; And the appointment of court experts to conduct interviews, mental health evaluations, or family assessments can prove to be of great value in diagnosing a personality disorder that may not have previously been formally discovered. These are a few of the many strategies we typically employ in high-conflict Family Court litigation involving people who may have personality disorders. If you find yourself in this situation, then you’ll need a strong advocate — an attorney who will fight hard to protect your interests. If you are in need of a consultation, Contact us today.

 

The Law Office of Gary J. Frank has been a fixture in the prestigious Biltmore area of Phoenix, Arizona for over thirty years.  Gary Frank and Hanna Amar are strong Family Law litigators and mediators with a wealth of experience both in the courtroom and in settlement negotiations.  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, same sex divorce and custody, and all matters relating to families and children.  If you are in need of a legal consultation, please do not hesitate to Contact us today.  You can reach us by telephone at 602-383-3610, or by email at [email protected] and [email protected], or through our website at www.garyfranklaw.com.  We’d be honored to help you.

NEW AZ SUPREME COURT CASE RESTORES FAIRNESS TO FAMILY LAW

Thanks to the Arizona Supreme Court’s decision in the case of Nicaise v. Sundaram the planets are now all aligned and balance has been restored in the world. Ok, maybe this is a little bit of an exaggeration, but not much as far as Arizona Family Law is concerned. Let me explain:

For many years, there has been a trend in the courts (Arizona and many other states) toward awarding divorced and separated parents “joint custody” of their children, and placing responsibility on them to work together in making major decisions affecting the children. Of course, making decisions together isn’t easy, so when problems would arise (on issues like choice of schools, or whether counseling is necessary, etc.) judges were available to hear the dispute and “break the tie” by making a binding decision. In some cases, where parents found it difficult to make decisions, the Court could enter an order awarding the parties joint custody, but giving one of the parents “final say” in the event of a dispute – but even though a parent had “veto power,” she/he was required to consult the other parent and seek their input prior to making the decision. In rare cases, the Court would award one party sole custody, but that tended to be reserved for cases where one of the parents was uninvolved; had a substance abuse problem; committed acts of domestic violence; had a criminal history; or demonstrated poor judgment that rendered them unfit to make decisions that were in the best interests of the children.

But all that changed in 2018 with the Arizona Court of Appeals ruling in the case of Nicaise v. Sundaram. I wrote about it in an August, 2018 blog post. The ruling turned Family Law in Arizona upside down. In that case, the Court of Appeals stated that the Court “may not substitute its judgment for that of a parent and make parenting decisions for them when they are unable to agree.” In other words, the courts no longer had the right to “break the tie” when parents could not agree on important matters such as medical, educational, or religious decisions affecting a child. The Appellate Court in Nicaise also concluded that giving a parent joint custody with “final say,” is the same as giving that parent sole legal decision-making authority.

The effect of the Court of Appeals ruling in Nicaise was profound. It pretty much assured that in every divorce or custody case where the parents were potentially at odds (which is the vast majority of them) the Court would be likely to award sole legal decision-making authority to one of them; or to split up the decision-making authority by giving one parent sole authority to make educational decisions while the other parent would have sole authority to make decisions on other matters, such as medical issues or religion.

In essence, this set up a win-lose battle where one parent would be given unfettered sole-discretion to make important decisions without seeking the other’s input, and leaving the other parent out in the cold. And it would probably result in more high-conflict cases; more contested trials; more fights to modify existing orders; and far more divorce and custody wars being waged in court.

But, thankfully, the Arizona Supreme Court changed all that in January, 2019 with its decision to overturn the Appellate Court ruling in Nicaise v. Sundaram.

The Supreme Court ruling makes much more sense. It noted that when the legislature enacted the law with regard to Joint and Sole Legal Decision-Making, it created a distinction between the two, and carved out an important exception: Whereas Arizona Revised Statutes, Section §25-401(6) gives a person with sole legal decision-making authority the right to make decisions affecting the child, Section §25-401(2) defines joint legal decision-making as both parents sharing decision-making and neither parent’s rights are superior “except with respect to specified decisions as set forth by the court or the parents in the final judgement or order.”  This exception allowed a judge to split the decision-making authority, and/or to award parents joint legal decision-making authority, while giving one parent the “final say” in the event of a disagreement.

The Supreme Court pointed out that someone with joint legal decision-making authority and “final say” is still required to communicate with the other party and seek their input in an attempt to resolve the matter before making the final decision. (This is not the case with sole legal decision-making authority.) Therefore, it held that joint legal decision-making authority with “final say” — and sole legal decision-making authority — are different as a practical matter. It also held that Section §401(2) “also preserves some legal authority for the parent who does not have final legal decision-making authority.” The Court ended its analysis by stating that “Arizona cases frequently provide for joint legal decision-making with one parent having final authority over certain matters . . . The court of appeals’ opinion unnecessarily injects uncertainty into a well-established practice and is inconsistent with the overall structure of §25-401.”

The Court of Appeals 2018 ruling in the Nicaise case threw us back into the dark ages where only one parent could be given “custody” and there would always be a winner and loser in every litigation. The Supreme Court’s 2019 decision to overturn the Court of Appeals case restores balance and fairness to Arizona Family Law. It allows for compromise. And it gives parents respect and a greater right to participate in their children’s upbringing.

 

At the Law Firm of Gary J. Frank P.C., both Gary Frank and attorney Hanna Amar 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 Amar is a highly-skilled attorney and mediator with a passion for Family Law and children’s issues – a great communicator who cares about her clients and uses her expertise to guide them through difficult times. We handle Family Law cases in the areas of divorce, custody (now called “Legal Decision-Making and Parenting Time), relocation (move-away), grandparent and non-parent rights, division of property, spousal maintenance, child support, modification and enforcement actions, 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 [email protected] and [email protected] You can also contact us through our website at www.garyfranklaw.com.   We look forward to hearing from you.

 

 

DIVORCE HOLIDAY SURVIVAL GUIDE

 

It takes courage. 

Making it through the holidays can be stressful for any family.  But for newly divorced couples, or those who are in the midst of a divorce or custody dispute, it can feel almost traumatic.  The thought of not having your children throughout Christmas, or of being alone on the holidays, can cause feelings of anxiety and depression.  The disruption of what have become family traditions can cause sadness.  Worries about how the children will fare while in the care the other parent (especially when that other parent was not the primary caregiver) can lead to panicky emotions.  Dealing with a relationship that has ended, and concerns about your children and your uncertain future, can be a recipe for fear and anger.  All too often, those are the types of emotions that come to the forefront during the holidays.  And the result can be arguments, disagreements . . . Conflict.

It takes patience.

Not surprisingly, family law attorneys are busy during the holidays.  When communication between parents shuts down, fear takes over.  When people become unwilling to discuss and compromise, anger flares.  That’s when people turn to their lawyers and the courts.  Sometimes emergency motions and court appearances are necessary, however, in many cases they are caused by a knee-jerk reaction to a perceived slight or threat; something said in the heat of the moment which neither party really intended to turn into an expensive legal skirmish.  In these instances, a little patience can go a long way.  When conflict occurs during the holidays, rather than jumping right in and engaging in a war of words, it helps to sit back, take a deep breath, and consider the alternatives.  This doesn’t mean giving in.  It simply means not “taking the bait” and escalating an already volatile situation.  It means keeping your composure and calmly examining your options before reacting.  Most problems can be worked out when people are able to think clearly and rationally.

It takes faith.

Statistics show that the vast majority of cases will be resolved out of court, before trial.  And following the divorce, most people will eventually settle into a time sharing routine that works for both the parents and the children.  If you can control the panicky emotions now, and make an effort to communicate respectfully with your ex (or soon-to-be ex), then you will be setting the stage for better communication in the future, and a healthy way of handling problems when they do arise.  Try to have a little faith that things will work out.

Here are ten tips for handling the stress and making sure that the children will enjoy the holidays:

  1. Allow yourself to grieve:

If this is your first holiday having to share the children, it doesn’t help to pretend that it isn’t difficult.  You can’t deny your emotions, but you can look for healthy ways to deal with them.  This might include talking to a friend or family member, finding some alone time, looking for a support group, or even seeking the help of a good therapist.

  1. Make time for social activities and exercise:

There will be times when you do not have the children over the holidays.  So, make the best of it.  Spend more time with friends and family.  Look for activities that you enjoy, and do them.  Take time to exercise — it will get your endorphins pumping and help you to feel good physically and mentally.

  1. Plan ahead:

Planning early for how time with the children will be shared during the holidays reduces the chances for miscommunication, and it allows you time to iron out potential problems before they occur.

  1. Put the needs of the children first:

When putting together a time-share schedule, make sure to consider the age of the children, as well as their developmental and social needs.  The goal is for the children to be able to enjoy the holidays, and this takes precedence over the convenience of the parents.  For very young children, it may be necessary to set up short periods of time with each parent.  For older kids and teens, longer time periods with each parent (such as a week with one, followed by a week with the other, during the school break) may be the best alternative.

  1. Be flexible:

If there is one thing I’ve learned about the holidays, it is to “expect the unexpected.”  It happens every year:  A favorite aunt, uncle, or cousin decides to visit at the last minute; a kid gets sick; plans for a family dinner get changed to an earlier, or later, time, etc.  Despite our best planning, these things happen.  So, be willing to be flexible.  It will not only make the holiday more fun for the children, and reduce conflict between parents, but it will make things less stressful (and more enjoyable) for you.

  1. Allow for open communication:

Lack of communication between children and a parent is a frequent cause of conflict during the holidays.  “I haven’t been able to speak to my kids for a week, and their mom won’t pick up the phone when I call.” — “Whenever Meagan calls me, I can hear her dad listening on the other line.” —  “My kids told me that my ex won’t let them talk to me on the phone.”   When children are in the home of a parent, they should be allowed to have reasonable telephone contact with the other parent, especially during the holidays.  This eases the children’s fears and shows them that their parents are willing to work together for their best interests. Problems can be avoided if the parents are willing to discuss this issue prior to the holidays and work out a reasonable schedule for phone calls – and, of course, it is important to be flexible.

  1. Don’t try to outdo the other parent:

There is sometimes a tendency for divorced parents to try to outdo each other during the holidays . . .  More fun.  Bigger gifts. Later bedtimes.  Less discipline . . .  Of course, this type of competition is understandable, but it is a trap.  Not only does it make life unnecessarily stressful for the parents, but it is certainly not in the best interests of the children.  Your children love you.  You don’t need to buy their affection.  If you want the kids to enjoy being with you, all you need to do is to give them your love and attention.

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

One sure way to ruin the holidays for your children is to make them feel as though they are in the middle of a battle between their parents.  Don’t make children choose.  Don’t complain to them about the other parent.  Don’t use them as messengers to communicate with your ex.  Don’t let them hear their parents arguing about issues involving them.  They are children, so let them be children.  They deserve to have a nice holiday and, as their parent, it’s up to you to make sure they do.

  1. Allow the children to love the other parent:

Children of divorce can feel torn.  They not only love each of their parents, but they often feel an allegiance and a responsibility to each.  The parents divorced each other, but they did not divorce the children.  Therefore, the children have a right to continue to love both parents after the divorce.  To deny them that right can lead to long term psychological problems.  You are the adult, and it is up to you to let your kids know that, despite the divorce, it is ok for them to love the other parent.  You can do that by not badmouthing the other parent; by not interrogating the kids after visits; and by not putting them in the middle of your dispute.  Just taking these simple steps can help assure that your children grow up to be healthy, well-adjusted adults, and that they will always look forward to the holidays with their family.

  1. Start a new tradition:

One of the hardest things for parents to bear following a divorce is the loss of a beloved holiday tradition with their children.  So, start a new tradition.  A party with family and friends; baking holiday goodies together; a fun trip; working with a charity.  The holidays are all about family, and giving.  You can sit down with your children and let them help choose a new activity that will become a beloved family tradition – something they will always remember.

 

At the Law Firm of Gary J. Frank P.C., both Gary Frank and attorney Hanna Amar 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 Amar is a highly-skilled attorney and mediator with a passion for Family Law and children’s issues – a great communicator who cares about her clients and uses her expertise to guide them through difficult times. We handle Family Law cases in the areas of divorce, custody (now called “Legal Decision-Making and Parenting Time), relocation (move-away), grandparent and non-parent rights, division of property, spousal maintenance, child support, modification and enforcement actions, 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 [email protected] and [email protected] You can also contact us through our website at www.garyfranklaw.com.   We look forward to hearing from you.

 

SEEKING GRANDPARENT VISITATION? WELL, LIFE JUST GOT EASIER.

 

If you are seeking Grandparent Visitation with a grandchild who is being withheld from you by an angry parent, you’re in luck. Because Family Law in Arizona has recently changed and life has suddenly become easier for those seeking Grandparents Visitation and Grandparents Custody. The storm clouds are parting and blowing away, and the sun is shining through. – Let me explain . . .

PREVIOUS LEGAL BARRIERS FOR MADE IT HARD FOR GRANDPARENTS

The law pertaining to Grandparent Rights can be found in Arizona Revised Statutes, Section 25-409. That statute contains the requirements for someone seeking Grandparent Visitation. The law also states that: “In deciding whether to grant visitation to a (grandparent), the court shall give special weight to the legal parent’s opinion of what serves their child’s best interests . . .”

Over the past few years, the higher courts in Arizona interpreted “special weight” as meaning that a judge has to give “Robust Deference” to the parents’ decision; and that to obtain grandparent visitation, grandparents must show that cutting them out of the picture would cause “Substantial Harm” to the child. This was a very high bar to reach, an obstacle that in many cases made it impossible for grandparents to obtain visitation rights.

BUT THINGS HAVE NOW CHANGED

But that has changed, and the bar has now been lowered. In the recent case of Friedman v. Roels, 401 P3d 884 (Ariz. 2018), the Arizona Supreme Court ruled that  Arizona Grandparents who are seeking visitation no longer need to prove “substantial harm” to the child, and that although a judge must still give the parents’ decision “special weight,” it is not to be accorded “robust deference.” This allows the Court to put more emphasis on the best interests of the child. Whereas, before, a judge was practically required to give in to the wishes of an angry parent, that is no longer the case. Grandparents who meet the requirements of the statute now have a fighting chance to obtain an order giving them visitation of their grandchildren, even over the objection of a parent who, out of anger or animosity, is trying to cut them out of the children’s lives.

We recently won an appeal in a Grandparent Rights case due to the change in the law, and we expect that it will become easier to obtain Grandparent Visitation orders down the road as a result of this new Supreme Court ruling.

NEED HELP? — GIVE US A CALL

If you are a grandparent who is unfairly being deprived of the ability to have a relationship with your grandchildren, and you wish to obtain an order for Grandparent Visitation or Custody, give us a call. We may be able to help.

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

 

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