HOW TO PREPARE CHILDREN FOR A DIVORCE

Each year, over 1 million American children are affected by their parents’ divorce. How each child reacts depends on many factors, including their age, personality, and of course, the circumstances surrounding the divorce or separation. Many times, the initial reaction of children is one of shock, sadness, frustration, anger, or worry. However, with enough planning, you can handle your divorce in a way that doesn’t have to feel like your kids’ world is crashing down on them. If dealt with appropriately, many kids can come out of divorce mentally stronger and better able to cope with stress.

Here are some tips to prepare your children for divorce and ease the transition:

Preparing to Deliver the News

When figuring out how to deliver the news to your children, make sure that you and your spouse are on the same page about how you will tell them what’s happening. It would be a good idea for you and your spouse to do some sort of “dress rehearsal” to prepare exactly what you are going to say ahead of time. Even if you feel like you can barely be in the same room as your spouse, it’s important to at least present a united front to prevent your kids from feeling like they are being pulled into taking sides. Children do significantly better with the news of divorce when their parents are positive and aligned.

Breaking the News

              Make sure that when you deliver the news to your children, you are doing it at a time when stress is low and nobody has plans for at least a few hours, that way they have a little bit of time to work through their initial reaction. Making this announcement and then sending the kids to school, for example, might make it very difficult for them to focus.

Additionally, this conversation should ideally take place in a quiet, safe space—perhaps their backyard, living room, or any other space that is comfortable and free of distractions. If your children have electronic devices with them, make a rule for everyone to put their devices away during the conversation.

What specific words and phrases you decide to use during the conversation will, of course, depend on the child’s age, maturity, and temperament. However, the discussion should always include this message: what happened is between mother and father and is in no way the child’s fault. The reason for this is that many children will feel that they’re to blame even after parents have said that they are not, so it’s important to keep reiterating this message. Make sure that your child knows that your decision is strictly about adults needing to be apart due to differences.

While you are obviously going to need to discuss what will be changing in your children’s lives and daily routine, it is equally as important to focus on what will stay the same. Divorce can be extremely destabilizing, so telling your children what will not change may provide them with some comfort.

Handling their Reactions

Every child will react to this news in their own way. Some children react very strongly initially and then slowly begin to adjust and accept it, while others seemingly take the news in stride and then exhibit signs of distress days, weeks, or even months later. Either way, these are normal reactions—they are grieving the loss of a family. Remind them that it’s perfectly okay to feel however they are feeling and that you are there to help them through the transition. And if you aren’t sure how your child is feeling about the divorce, just ask them.

As children continue to react, they will likely have many questions, including where they will live, where each parent will live, where they will go to school, if they’ll still get to see their friends, etc. Be as honest as you can, even when it isn’t easy. If you don’t have an answer to something, tell your child that you will let them know as soon as you figure it out.

Helping Kids Cope and Adjust to their New Normal

As time goes on, children will begin to adjust to their new life with divorced parents. This can be difficult at first, however, there are a few things you can do to help them better adjust:

  • Stay consistent. Whenever possible, minimize unpredictable schedules, transitions, or changes. Consistency and routine can go a long way toward providing comfort and familiarity for children. Don’t try to make your children feel better by relaxing limits, letting them act out, or buying them things. This can backfire, possibly making your children more insecure and less likely to recognize your parental authority later.
  • Encourage communication. Tell your child that it’s okay to talk about their feelings and ask questions, but don’t push them. Let your child vocalize how they are feeling if they want to. If your child doesn’t want to talk about the divorce, don’t try to engage in a conversation about it—they may not be ready yet. Let them know that you are available if and when they are ready to talk about it. Do your best to co-parent with your soon-to-be “ex.” Parents need to communicate and consult each other on major decisions, so that the children know that their parents are on the same page. Let them know that both of their parents love them and are looking out for their best interests.
  • Have a therapist on call. Before you even announce your split to your kids, it might be a good idea to line up a therapist. Providing children with a neutral place to express their feelings can help them process some of the big emotions they’re going through. It’s good to have your child start with a therapist before they start showing signs of behavioral changes.
  • Don’t fight in front of the children. Studies have shown that post-divorce conflict in front of the children can lead to mental health issues down the line. Openly arguing in front of the kids can make them feel like they are stuck in the middle—something that no child should ever feel. Additionally, this conflict can set a really bad example for them, especially when they are still learning how to form their own relationships. Whether you and your ex decide to go to mediation, therapy, or just argue outside of the children’s earshot, do whatever you have to do to keep the kids out of it.
  • Don’t talk poorly about one another. This can be a tough one but try your best not to lay blame on your partner to your children, even if there has been serious hostility or infidelity. This will just lead to your children feeling like they have to pick a side, which, again, is something that no child should ever feel. If you can, make a pact with your ex to not ever talk poorly about each other in front of the child.

Ultimately, changes of any kind are hard for kids. Stay patient, stay consistent, and know that you and your children will get through

By Logan Matura

 

At the Law Firm of Gary J. Frank P.C., our Arizona Family Law Attorneys Gary Frank, Hanna Amar, and Logan Matura are strong litigators and compassionate counselors. Gary Frank is a Phoenix 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. Law firm Partner, Hanna Amar is a highly-skilled Arizona Family Law Attorney with a passion for Family Law and children’s issues. She has extensive courtroom experience, and is also a certified mediator. Hanna has also acted as the President of the Young Lawyer’s Division of the Maricopa County Bar Association. Associate Attorney Logan Matura is an Arizona Family Law Attorney who received her Juris Doctor degree from New York Law School in Manhattan, NY. While in law school, she served as an intern for a Family Court judge in the Bronx, NY, and was a member of the Family Attorneys Mobilizing club. 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 step-parent and non-parent rights, as well as 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.

Conflict in Front of the Kids: Why Not to Do It and How to Avoid It

We recently posted an article on our social media about Parental Alienation and its harmful effect on children. But recent child development research shows that even experiencing lower levels of parental conflict can lead to mental health problems for children who are caught in the middle.

The findings of a new Arizona State University research study, titled “Longitudinal Effects of Post-Divorce Interparental Conflict on Children’s Mental Health Problems Through Fear of Abandonment” were published just last week in the Child Development journal. The study, as the title suggests, focused on the lasting effects that post-divorce parental conflicts have on their children’s mental health.

From 2012 to 2015, the researchers surveyed families participating in the ASU New Beginnings Program, asking 559 children (aged 9-18) about their exposure to conflict. The questions included topics like whether after their parents’ divorce their parents fought in front of them, spoke poorly about one another, asked them to carry messages to one another, etc. The study ultimately found that children exposed to parental conflict were more likely to report worrying about being abandoned by one or both parents. Furthermore, children who reported higher fear of abandonment were also more likely to report additional mental health problems 11 months later.

Before conducting this study, researchers hypothesized that kids who had strong relationships with one or both of their parents would experience less fear of abandonment and fewer mental health problems, since strong parent-child relationships generally create a stress buffer for children. However, they did not find a general buffering effect of parenting in this situation.

Karey O’Hara, a research assistant professor of psychology at ASU and the first author on the paper, stated “This was the most surprising finding for us. Good parenting is a very strong and powerful protective factor for all children, especially after a separation or divorce. But based on prior research, we know that the effect of good parenting is complicated in separated/divorced families.” She then added that although good parenting is protective, it may not be enough to cancel out the negative effects of conflict.

Parents can do something about it, though. In her research paper, O’Hara urges parents not to argue or fight in front of the children. She suggests that parents be extra careful when they’re around the other parent if there is a chance for conflict, and that parents make a conscious effort not to say things that might make their children feel like they are caught in the middle and have to pick sides. In other words, she suggests no badmouthing the other parent or asking the child to spy or act as a messenger.

It is also important, particularly given the findings of the study, “for parents to make sure that their children know that although they are separated or divorced, they will continue to care for them,” in order to allay any fears of abandonment that the child might have.

Going through a separation, a divorce, or a contested custody case can certainly be difficult for children that are experiencing it. If you are a parent who is going through, or has gone through, a divorce or separation, take Karey O’Hara’s advice and try to avoid conflict with your ex and putting your children in the middle as much as possible. And if you don’t feel like you can control and mitigate conflict on your own, there is no shame in seeking help—ultimately it will make you a better parent and your children happier and healthier.

By: Logan Matura

 

At the Law Firm of Gary J. Frank P.C., our Arizona Family Law Attorneys Gary Frank, Hanna Amar, and Logan Matura are strong litigators and compassionate counselors. Gary Frank is a Phoenix 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. Law firm Partner, Hanna Amar is a highly-skilled Arizona Family Law Attorney with a passion for Family Law and children’s issues. She has extensive courtroom experience, and is also a certified mediator. Hanna has also acted as the President of the Young Lawyer’s Division of the Maricopa County Bar Association. Associate Attorney Logan Matura is an Arizona Family Law Attorney who received her Juris Doctor degree from New York Law School in Manhattan, NY. While in law school, she served as an intern for a Family Court judge in the Bronx, NY, and was a member of the Family Attorneys Mobilizing club. 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 step-parent and non-parent rights, as well as 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.

 

What You Post on Social Media CAN Hurt You In a Family Law Case

These days, most teens and adults have at least one social media page, whether it be on Facebook, Instagram, Twitter, Snapchat, TikTok, LinkedIn, or some other platform. Since so many adults have social media accounts, many attorneys have witnessed mistakes that have been made on social media which negatively impacted their family law case. In fact, we have won cases for our clients simply because of what an opposing party, in a moment of anger, posted on their social media.

You may wonder how what you post online can have a negative impact on your divorce or custody case. I’ll give you a few examples, some of which are based off of real cases that our firm has handled in the past:

  • In a spousal maintenance case, a husband claimed to be earning very little income, yet he posted on Match.com that he earned over $150,000 per year. This post was then used against him to show that he made more than he originally said he did.

 

  • In a custody case, a mother who denied doing drugs and partying was posting photos on Instagram in which she was at bars and nightclubs holding bottles of alcohol with others doing drugs in the background. This was then used against her in court when determining parenting time and legal decision making.

 

  • In a divorce case that started off amicably, a husband ranted on Facebook about his soon to be ex-wife after a heated argument. A mutual friend screenshotted the post and sent it to the wife, who became enraged and decided she no longer wanted to be amicable. This led to a litigation that went on for years and cost a great deal of money for both parties.

 

  • A mother posted photographs on Instagram of herself and her young daughter with Mother’s new boyfriend. An investigation turned up that the man had a long criminal record, including convictions for domestic violence and child abuse. Needless to say, the mother lost custody of that child.

 

  • In a high-conflict custody matter, an angry father made threats against the mother on his Facebook page, which resulted in the Court awarding mother sole custody with only limited supervised visitation for Father.

 

If you are active on social media, it’s important to learn the best practices while going through a family law case. Here are some important tips:

  1. Be careful who you add and accept on social media. We all want to have lots of friends and followers on social media, but some of these “friends” can hurt you. That follow-request that you accepted, despite not really knowing who they are, could be a private investigator or your ex on a burner account trying to see your posts. Consider making your accounts private and be careful whose requests you accept.
  2. Remove your ex from your social media page and consider removing their family and friends too. It is not uncommon for one of these types of “friends” or followers to pass along a copy of your comments or photos, and before you even suspect it, that post shows up in court and is used as evidence against you at trial. These types of “friends” or followers are often the ones who are looking into everything you say or do on social media and trying to find something damaging to your case.
  3. Don’t post when you are angry. Nothing good can come from posting while you are angry. Try and channel your anger into something positive, or vent to family, friends, or a mental health specialist. If you are concerned that you can’t control your posts when you are angry, it may be wise to take a break from social media until your case is over.
  4. Do not talk badly about your ex or their family and friends. It’s easy sometimes in the heat of the moment to post something negative about your ex. It may not even be something that is obviously towards them but could be something subtle and passive aggressive. These comments could be taken out of context, or otherwise used against you in a court hearing. No matter how subtle you think the message may be, it is never a good idea to post things about your ex or their family and friends.
  5. Do not talk badly about yourself, your family or friends, or provide information that could possibly be reflect negatively on you. Just as you shouldn’t post about your ex and their family and friends, you shouldn’t post about yourself and your family and friends either. Again, things can be misconstrued. I recently saw an old friend post something on Twitter to the effect of “the last year has taught me that nobody hates me more than I hate me.” If they were in a family law case, this post would absolutely be used against them, even if they were just joking and did not actually mean what they wrote.
  6. Do not post comments or photos of yourself, your family, or your friends doing anything illegal or which may appear to be illegal, inappropriate, or compromising. This pretty much speaks for itself, but don’t post anything that would very clearly negatively reflect on you, your family, or your friends. There is just no need to post the pictures of you at your office holiday party taking tequila shots with your boss. Keep those for yourself—or maybe don’t take those pictures at all.
  7. Do not post about your children. If you have kids, it’s best to keep them off of your social media pages altogether at this time. Of course, you should continue to share special moments and take photos with your kids. However, it may be beneficial to take a break from posting about them on social media until your case is over. While photos of you and your kids or posts about them may be totally acceptable at any other time, while there is a case going on, you are under a microscope. Certain photos could be misinterpreted or there could be something in them you don’t even notice that could be used to call your parenting into question. The same goes for the stories you tell or comments you make about your kids—you just never know how something may be interpreted.
  8. Do not post about your income, or really anything about money, at all. There is nothing good that can come from writing about your income or your money on social media! It’s really as simple as that!
  9. Do not discuss your case publicly on social media. Again, nothing good can come from posting about your case publicly on social media. It will not look good for you with the judge, and as always, something may be misinterpreted or taken the wrong way by your ex or their lawyer.
  10. Do not post information about conversations with your attorney. This could be construed as a waiver of your attorney-client privilege, making admissible things that were said in confidence to your lawyer. Just don’t do it!

Social media can be a really fun part of our lives. But as you can see, it can significantly impact many areas of a family law case in a negative way. As a rule of thumb, if you wouldn’t want a judge or your ex’s attorney seeing the post or photo, don’t post it! And if you are questioning whether you’d be okay with them seeing the post or photo, just don’t post it!

By Logan Matura

 

At the Law Firm of Gary J. Frank P.C., our Arizona Family Law Attorneys Gary Frank, Hanna Amar, and Logan Matura are strong litigators and compassionate counselors. Gary Frank is a Phoenix 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. Law firm Partner, Hanna Amar is a highly-skilled Arizona Family Law Attorney with a passion for Family Law and children’s issues. She has extensive courtroom experience, and is also a certified mediator. Hanna has also acted as the President of the Young Lawyer’s Division of the Maricopa County Bar Association. Associate Attorney Logan Matura is an Arizona Family Law Attorney who received her Juris Doctor degree from New York Law School in Manhattan, NY. While in law school, she served as an intern for a Family Court judge in the Bronx, NY, and was a member of the Family Attorneys Mobilizing club. 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 step-parent and non-parent rights, as well as other matters pertaining to families and children. If you are in need of a consultation, call us today at 602-383-3610; or you can contact us by email through our website at www.garyfranklaw.com.   We look forward to hearing from you.

 

ARIZONA’S PRESUMPTION OF EQUAL PARENTING TIME HURTS CHILDREN

Is Arizona’s presumption of equal or near-equal parenting time in the best interests of children? We think not.

Several years ago, revisions were made to certain Arizona Family Law statutes that guide the Court in making custody decisions involving children. These revisions have had a tremendous impact on how the Court determines custody, and in our opinion, it is not a positive one. The changes have resulted in Arizona now having what is essentially a legal presumption of equal decision-making and parenting time in every case that comes before the court. We believe this approach hurts children significantly more than it helps them. It is also unfair to both mothers and fathers.

When the Arizona Family Law statutes were revised, the following changes, among others, were made:

  • 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)
  • The provision which, in determining custody, had previously required the Court to consider which parent had historically been the child’s primary caregiver, was removed, 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])

On its face, the changes made might seem positive. It is absolutely true that children are more successful 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. However, not all parents are loving, active, and involved, and unfortunately that is something the changes in the statutes failed to sufficiently address.

Since the changes were enacted, there has been a significant shift in the way decisions are made regarding legal decision-making authority and parenting time. Arizona Family Court judges do their very best to assure that the interests of children are protected, however, a judge is required to apply the law as it is written by the legislature and interpreted by the higher courts. In 2019 Woyton v. Ward, the Court of Appeals ruled that it was an error for the trial court to designate Mother as the primary residential parent of the child based on her historical role as the child’s primary caregiver. The court stated that “As a general rule equal or near-equal parenting time is presumed to be in the child’s best interests. Thus, the court errs, as a matter of law, when it applies a presumption against equal parenting time.”

This ruling was troubling, as it solidified the idea that there is a legal presumption of equal parenting time. If a presumption against equal parenting is wrong, why wouldn’t a presumption for equal parenting time be just as wrong? In our opinion, there should be no such presumption. The problem with a legal presumption is that it can only be rebutted by “clear and convincing evidence.” Proving a matter by clear and convincing evidence can be mountain to climb. As mentioned earlier, not all parents are created equal. Awarding parenting time based on a mere presumption, when one of the parents may not be nearly as nurturing, capable, or involved as the other is a serious mistake that can harm a child in the long run.

Although the ruling in the Woyton case was rather harsh, another Court of Appeals case published just this year, Gonzalez-Gunter v. Gunter, may ameliorate the presumption of equal parenting time to some degree. In that case, the Court affirmed that “as a general rule equal or near-equal parenting time is presumed to be in a child’s best interest,” but it then went on to state that: “The Family Court, however, has discretion to determine parenting time based on all the evidence before it.” The Court, in Gonzalez, explained that although judges may be limited on the conditions they can place on how a parent may exercise their parenting time (like ordering supervised visitation, for example), they are not limited in their right to unevenly allocate the amount of one parent’s parenting time, if necessary. In other words, judges are not required to order equal decision-making authority and parenting time if the parents are not equal in their ability to care for the child. But some judges still do.

The Gonzalez-Gunter case is an important departure from the ruling in the Woyton case. However, in many family law cases, the the distinction addressed in Gonzalez is being ignored and the courts are awarding equal parenting time, even where the parents are not equally competent, caring, and nurturing. This may be due to way some judges view the statutory requirement to consider the “potential” of the parent who has not provided equal care. But it can render the important “Best Interests of the Child” standard essentially a meaningless catchphrase. For now, it appears that that parents’ rights too often trump children’s rights in Arizona Family Court.

In addition to the fact that we do not believe equal parenting time should be a legal presumption, we also believe that a greater emphasis should be placed who has provided primary care of the child than on “the … potential future relationship between the parent and the child.” It is true that when a divorce occurs, a parent who may have been the a stay-at-home mom or dad will probably have to work, and the other parent will have to take on more responsibility with the children. However, the problem with focusing on the potential future relationship is that every relationship has the “potential” to be great, but many don’t turn out that way. Similarly, every uninvolved parent has the potential to change and become more involved, but it doesn’t mean that they will. The best predictor of a future relationship is past history, so emphasizing potential over the actual history of the relationship, or even giving it equal weight, can be a huge mistake. Ultimately, when a father or mother is awarded equal parenting-time and never lives up to their potential, it is the children who will truly suffer the consequences.

In our opinion, a parent’s potential should be one of the factors the judge considers in determining what is in the best interest of the child(ren), but we believe it was wrong for the Arizona Legislature to remove “which parent has been the primary caregiver of the child” from the list of factors in A.R.S. §25-403. Doing so indicates that the change to the statute may have been more political than really about children and their best interests.

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 and able to co-parent their children (which is obviously the best scenario). This is why each case should be decided on its own merits.

We believe that the Court should start with a blank slate in determining the child(ren)’s needs and which parent is better equipped to provide for those needs. If both parents are equally equipped, then there should be an award of equal parenting time and decision-making. However, where the best interests of the child would be served by one of the parents being given the majority of the decision-making authority and/or parenting time, then the Court should be able to make that ruling without having to overcome a presumption. The needs of the child should always come first.

By Gary Frank & Logan Matura

 

At the Law Firm of Gary J. Frank P.C., Gary Frank, Hanna Amar, and Logan Matura 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. Law firm Partner, 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 has also acted as the President of the Young Lawyer’s Division of the Maricopa County Bar Association. Associate Attorney Logan Matura received her Juris Doctor degree from New York Law School in Manhattan, NY. While in law school, she served as an intern for a Family Court judge in the Bronx, NY, and was a member of the Family Attorneys Mobilizing club. 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 step-parent and non-parent rights, as well as 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.

A PRESUMPTION OF EQUAL PARENTING TIME HURTS CHILDREN

Is Arizona’s presumption of equal or near-equal parenting time in the best interests of children? We think not.

Several years ago, revisions were made to certain Arizona Family Law statutes that guide the Court in making custody decisions involving children. These revisions have had a tremendous impact on how the Court determines custody, and in our opinion, it is not a positive one. The changes have resulted in Arizona now having what is essentially a legal presumption of equal decision-making and parenting time in every case that comes before the court. We believe this approach hurts children significantly more than it helps them. It is also unfair to both mothers and fathers.

When the Arizona Family Law statutes were revised, the following changes, among others, were made:

  • 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)
  • The provision which, in determining custody, had previously required the Court to consider which parent had historically been the child’s primary caregiver, was removed, 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])

On its face, the changes made might seem positive. It is absolutely true that children are more successful 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. However, not all parents are loving, active, and involved, and unfortunately that is something the changes in the statutes failed to sufficiently address.

Since the changes were enacted, there has been a significant shift in the way decisions are made regarding legal decision-making authority and parenting time. Arizona Family Court judges do their very best to assure that the interests of children are protected, however, a judge is required to apply the law as it is written by the legislature and interpreted by the higher courts. In 2019 Woyton v. Ward, the Court of Appeals ruled that it was an error for the trial court to designate Mother as the primary residential parent of the child based on her historical role as the child’s primary caregiver. The court stated that “As a general rule equal or near-equal parenting time is presumed to be in the child’s best interests. Thus, the court errs, as a matter of law, when it applies a presumption against equal parenting time.”

This ruling was troubling, as it solidified the idea that there is a legal presumption of equal parenting time. If a presumption against equal parenting is wrong, why wouldn’t a presumption for equal parenting time be just as wrong? In our opinion, there should be no such presumption. The problem with a legal presumption is that it can only be rebutted by “clear and convincing evidence.” Proving a matter by clear and convincing evidence can be mountain to climb. As mentioned earlier, not all parents are created equal. Awarding parenting time based on a mere presumption, when one of the parents may not be nearly as nurturing, capable, or involved as the other is a serious mistake that can harm a child in the long run.

Although the ruling in the Woyton case was rather harsh, another Court of Appeals case published just this year, Gonzalez-Gunter v. Gunter, may ameliorate the presumption of equal parenting time to some degree. In that case, the Court affirmed that “as a general rule equal or near-equal parenting time is presumed to be in a child’s best interest,” but it then went on to state that: “The Family Court, however, has discretion to determine parenting time based on all the evidence before it.” The Court, in Gonzalez, explained that although judges may be limited on the conditions they can place on how a parent may exercise their parenting time (like ordering supervised visitation, for example), they are not limited in their right to unevenly allocate the amount of one parent’s parenting time, if necessary. In other words, judges are not required to order equal decision-making authority and parenting time if the parents are not equal in their ability to care for the child. But some judges still do.

The Gonzalez-Gunter case is an important departure from the ruling in the Woyton case. However, in many family law cases, the the distinction addressed in Gonzalez is being ignored and the courts are awarding equal parenting time, even where the parents are not equally competent, caring, and nurturing. This may be due to way some judges view the statutory requirement to consider the “potential” of the parent who has not provided equal care. But it can render the important “Best Interests of the Child” standard essentially a meaningless catchphrase. For now, it appears that that parents’ rights too often trump children’s rights in Arizona Family Court.

In addition to the fact that we do not believe equal parenting time should be a legal presumption, we also believe that a greater emphasis should be placed who has provided primary care of the child than on “the … potential future relationship between the parent and the child.” It is true that when a divorce occurs, a parent who may have been the a stay-at-home mom or dad will probably have to work, and the other parent will have to take on more responsibility with the children. However, the problem with focusing on the potential future relationship is that every relationship has the “potential” to be great, but many don’t turn out that way. Similarly, every uninvolved parent has the potential to change and become more involved, but it doesn’t mean that they will. The best predictor of a future relationship is past history, so emphasizing potential over the actual history of the relationship, or even giving it equal weight, can be a huge mistake. Ultimately, when a father or mother is awarded equal parenting-time and never lives up to their potential, it is the children who will truly suffer the consequences.

In our opinion, a parent’s potential should be one of the factors the judge considers in determining what is in the best interest of the child(ren), but we believe it was a serious mistake for the Arizona Legislature to remove “which parent has been the primary caregiver of the child” from the list of factors in A.R.S. §25-403. Doing so indicates that the change to the statute may have been more political than really about children and their best interests.

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 and able to co-parent their children (which is obviously the best scenario). This is why each case should be decided on its own merits.

We believe that the Court should start with a blank slate in determining the child(ren)’s needs and which parent is better equipped to provide for those needs. If both parents are equally equipped, then there should be an award of equal parenting time and decision-making. However, where the best interests of the child would be served by one of the parents being given the majority of the decision-making authority and/or parenting time, then the Court should be able to make that ruling without having to overcome a presumption. The needs of the child should always come first.

By Gary Frank & Logan Matura

 

At the Law Firm of Gary J. Frank P.C., Gary Frank, Hanna Amar, and Logan Matura 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. Law firm Partner, 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 has also acted as the President of the Young Lawyer’s Division of the Maricopa County Bar Association. Associate Attorney Logan Matura received her Juris Doctor degree from New York Law School in Manhattan, NY. While in law school, she served as an intern for a Family Court judge in the Bronx, NY, and was a member of the Family Attorneys Mobilizing club. 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 step-parent and non-parent rights, as well as 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.

 

Five Tips for Co-Parenting During a Pandemic

For just about 10 months now, we have been living through unprecedented times. Most businesses are still closed or operating with restrictions, some schools are still remote, and life overall really hasn’t gone back to “normal,” as many expected it would have by now.

During the COVID-19 pandemic, many families have discovered that previously stable arrangements may not be able to withstand the stresses created by these changes. Divorce rates have skyrocketed. And for previously divorced families whose co-parenting and custody arrangements were already contentious, these changes may be intensifying conflicts and creating new ones.

While a crisis like this can certainly be stressful, it can also be a good time for both parents to overcome their differences and work together. Here are some tips for co-parenting during a pandemic:

  1. Stay Informed and In Touch

Because there is so much uncertainty that comes with a pandemic, it’s crucial that both parents stay informed. Parents should periodically check official state and local websites, making sure that they are up to date on COVID-19 guidelines. Parents should also check their child’s school website frequently, taking note of any closures or schedule changes that may be happening.

It’s also essential that both parents keep communication open as much as possible throughout the pandemic. Parents are understandably nervous for the health and safety of themselves and their child. Keeping the other parent in-the-loop and answering their calls, texts, or emails in a timely manner can help alleviate some of the stress and anxiety. If you or your child are feeling sick, or if you think you or your child may have been exposed to COVID-19, be up front with the other parent and let them know immediately.

  1. Follow Your Parenting Plan and Talk Through Possible Schedule Changes

Parents should continue to comply with existing parenting time orders as much as possible. Failure to comply with court-ordered parenting time may lead to being held in contempt of court.

In certain circumstances, however, it may not be possible or realistic to comply with existing parenting time orders. Perhaps one parent lives in another state, has a compromised immune system, or is an essential worker. Maybe one parent is actually sick with COVID-19 or has been exposed to the virus. In circumstances like those, it may be in the best interest of your child to be flexible and renegotiate custody and visitation schedules.

Parents should use common sense to navigate these difficult circumstances. While the idea of seeing your child less may be upsetting, understand that the pandemic will not last forever. It’s okay to make modifications to your parenting plan in times of crisis to do what’s best for your child.

If parents need to temporarily make changes to their visitation schedule for whatever reason, consider using technology to maintain communication and interaction between the parent and child as much as possible. Emails and text messages are quick and efficient, and there are even court-approved apps (such as ourfamilywizard.com) that make communication between parents easier and less contentious. Parents should also try to agree on a make-up schedule for lost in-person parenting time.

If parenting time hasn’t changed for your family, consider creating a backup plan in case it needs to. Talk about what would happen in the event one parent gets sick or is exposed; the child gets sick or is exposed; school closes again; etc. This way, if something happens, you’ll already have a plan.

  1. Talk to Your Child

Check in with your child! They are living through intense periods of change and uncertainty, and that can be really difficult for them. Be there for them. Understand that there are varied ways children deal with stress and anxiety. Listen to their concerns and be supportive and empathetic. Make sure not to give them too much information about court cases or parental disputes. And be careful not to bad mouth the other parent to your children. They need permission to love you both.

Now is the time to try to be the best parent you can under the circumstances. Reassure your child that we will get through this, that some changes are only temporary, and most importantly, that they are loved and cared for.

  1. Take Care of You

Co-parenting during a pandemic can be exhausting. While you probably feel like you are focusing most of your attention on your child’s needs, don’t forget to practice a little self-care. Take a little time for yourself each day, even if it’s just a few minutes to meditate, do yoga, or take a bath.

Get help if you need it. If you’re feeling anxious or overwhelmed, consider counseling or therapy. Support from a mental health professional can really help. Working these issues out can allow parents to better care for their families.

Most importantly, be compassionate with yourself. You are human and you are living through unprecedented times. It can certainly be hard at times, but you can and will get through it.

  1. Figure Out What Works Best for You!

“Different strokes for different folks,” as they say! There is no correct way to co-parent during a pandemic. Work with your ex to figure out what works best for you both, and your child. This pandemic is a perfect opportunity for co-parents to come together and make decisions in the best interest of the child they both love.

By: Logan Matura

 

 

At the Law Firm of Gary J. Frank P.C., Gary Frank, Hanna Amar, and Logan Matura 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. Law firm Partner, 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 has also acted as the President of the Young Lawyer’s Division of the Maricopa County Bar Association. Associate Attorney Logan Matura received her Juris Doctor degree from New York Law School in Manhatten, NY. While in law school, she served as an intern for a Family Court judge in the Bronx, NY, and was a member of the Family Attorneys Mobilizing club. 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 step-parent and non-parent rights, as well as 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 AMAZING POWER OF EMPATHY

          There’s this thing called “Empathy.”  And it’s a powerful force.  When I don’t see eye-to-eye with someone, I try very hard to understand why that person feels the way they do, and why their reality is so different from mine.  When I take that approach, I am usually able to comprehend their logic or at least catch a glimpse of where that person is coming from, even if I don’t agree with their reasoning or conclusions.
          Unfortunately, many people are unwilling or unable to see a problem through another person’s eyes.  And in today’s political environment, empathy and compassion are often considered a liability. Why? Maybe people are afraid that trying to understand another’s point of view will somehow be seen as a tacit admission that the person is right.  Maybe they fear that conceding a point, even a small one, is tantamount to losing the debate.  Or maybe they’re just afraid of being wrong.
          But “Empathy” is not a weakness – it’s a strength.  Failing to consider a problem from the opposing point of view often leads to a stalemate and continued conflict.  Refusing to make even a minimal concession or a reasonable compromise only assures that competing parties will never be able to bridge the gap and resolve their differences.  It heightens the conflict and can cause a small spark to become a raging fire.
          When two people are going through a divorce, it’s a scary and emotional time in their lives.  They may wonder, “What’s going to happen to my children?” or “How can I protect the assets that I’ve worked my whole life to accumulate?”  It can feel as though the ground beneath them has fallen away and they have nothing to hold onto.  Fear grips them.  And eventually their fear morphs into anger.  They run out and look for the meanest, most aggressive attorney they can find.  But they soon learn that the divorce litigation, which is an adversarial process to begin with, has only increased their fear and inflamed their anger.
          With this mindset, it is hard to make concessions or compromises.  It is difficult to put yourself in the shoes the other person (who, by now, may seem like an enemy) — but that is exactly what you need to do.  Because being able to view the situation through the eyes of that person will enable you to better understand their perspective — their fears, their insecurities, their unstated needs.  And that insight, along with a willingness to make reasonable concessions, could allow you to resolve your dispute amicably, and save thousands of dollars in the process.
          A father going through a divorce might be afraid that the mother is trying to take his children away from him.  A wife who was a stay-at-home mom for many years might be afraid that she won’t be able to support herself after the divorce.  By trying to understand those fears, you are better able to address the problem.  Empathy also allows you control your own fear and insecurity.  You are less likely to be angry with your soon-to-be ex-spouse if you understand that his/her motives are not evil.  That person is just fearful, like you are.
          In the end, empathy enables you to comprehend the other party’s state of mind, which may result in finding a solution that allows you to meet their needs without compromising your own.

 

 

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 has also acted as 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 step-parent and non-parent rights, as well as 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.

 

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.

 

 

ARIZONA CUSTODY LAW UPDATE – IS ASSUMPTION OF EQUAL PARENTING TIME AND DECISION-MAKING AUTHORITY UNFAIR TO CHILDREN?

  In 2012 I wrote an article on our law firm’s blog entitled “Say Goodbye to Custody,”, in which I discussed the brand new, and highly debated, revisions to the Arizona Family Law statutes. These laws, which guide the Court in making custody decisions involving children, have given rise to an assumption of equal parenting time and decision-making authority that has become the starting point for the Court’s analysis in every contested custody case. In my opinion, this approach hurts children more than helps them, and is unfair to both mothers and fathers. In this article, I’ll explain why.

Among the changes to the law were the following:

  • The word “custody” was replaced with the terms “Legal Decision-Making” and “Parenting Time.” (A.R.S. §25-403)
  • A provision was added providing that the court shall adopt a parenting plan “that provides for both parents to share legal decision-making regarding their child and that maximizes their respective parenting time.” (A.R.S. §25-403.02)
  • And in determining custody, whereas the Court was previously required to consider which parent had historically been the primary caregiver for the children, that was removed from the list of factors in the statute and replaced with a requirement for judges to consider: “The past, present, and potential future relationship between the parent and the child.” (A.R.S. §25-403 [1], Emphasis added.)

At the time, there was much discussion as to what these changes would mean. Some experts believed that the revisions were mostly “semantics” and that not much would change. Others argued that the revisions would lead to a “sea-change” in how the courts determine custody (now called Legal Decision-Making and Parenting Time) in the future.

Now, more than five years later, the answer is in. Has there been a big change? Yes. The change has been enormous. It is a seismic shift in the way judges determine parenting time and legal decision-making authority. And, in my opinion, the change is not necessarily a healthy one.

The law still provides that the “best interests of the child” standard should be applied when making “custody” and parenting time decisions, but today, many judges interpret the statutory changes as requiring them to start with the assumption that both parents should be given equal decision-making authority, and equal parenting time. And, in many cases, that trumps the best interests of the child. It wasn’t that way before the law was changed. But, increasingly, it is the reality today.

Why do I think this is not a healthy approach? Well, I’ll get to that in a minute; but before I do, I need to explain a few things: The latest studies show that children do better, and are happier, when both of their parents are loving, active and involved. When a divorce or breakup occurs, the courts should work to make sure that loving, active and involved parents share in decision-making, and that the children get to spend plenty of time with both of them. In fact, Arizona law provides that:

It … is the declared public policy of this state and the general purpose of this title that absent evidence to the contrary, it is in a child’s best interest: (1) To have substantial, frequent, meaningful and continuing parenting time with both parents; (and) (2) To have both parents participate in decision-making about the child.” (A.R.S. §25-103) 

So that’s the policy. And it’s true that equal decision-making and equal parenting time are good for children when both parents are loving and capable caregivers. But here’s the catch: Not all parents are equal. Some parents have never been meaningfully involved in their children’s lives, and never will be. And I’m not necessarily talking about “bad” parents. There are parents who love their children but are just too busy, or maybe not interested enough, to be involved. If a parent isn’t available to spend time with the children; and rarely or never attends doctors’ appointments, or school functions, or extracurricular activities; and if that parent doesn’t know the children’s friends; and isn’t tapped into their children’s likes and dislikes, their strengths and weaknesses; their abilities, or disabilities; their medical conditions; etc., then how can that parent be trusted with making critically important decisions for those children? – But all too often today, these types of parents are awarded 50/50 parenting time and equal decision-making authority. And why? – Because of an unwritten assumption that a parent is entitled to it under Arizona law.

This is where I think the new law, as currently interpreted, goes off the rails and can hurt children. It places “Parents’ Rights” ahead of “Children’s Rights.” It assumes that in every case the Court should start its analysis with the proposition that both parents will receive equal parenting time and decision-making authority. And, by doing this, the best interest of the child has been made secondary to the best interest of the adults. Proponents of the law will not agree with my opinion. They will point out that there is no legal presumption mandating equal decision-making and parenting time — but that argument rings hollow. Because while it is true that overcoming a legal presumption requires a higher level of proof than a mere assumption, there is often little difference between the two in actual practice.  Try explaining the difference to a mother or father who has always been the sole caregiver, but whose children will now spend half their lives with a parent who never changed a diaper, never got up with a baby at night, never took care of a sick toddler, or attended a parent-teacher conference, or a school play, or a Little League game.

Those favoring an assumption of equal parenting-time and decision-making will argue that the Court is still required to consider all relevant factors, and that while “equal” may be the starting point in the analysis, a judge can give a parent less time, or no decision-making authority at all, where it is deemed to be in the best interest of the child. And that is true. But I would remind them that Arizona law was also changed in a way that makes such an outcome less likely.

Arizona Revised Statutes, Section 403 contains a list of factors that the Court shall consider in determining Legal Decision-Making and Parenting-Time. Before the law was changed, that statute contained a factor which required a judge to consider whether a parent had historically provided primary care for the child. But that factor was removed from the statute and replaced with this: “The court shall consider all factors that are relevant to the child’s physical and emotional well-being, including . . . (1) The past, present and potential future relationship between the parent and the child.”

So now, in making the all-important decision on where the child lives and who will make major decisions, the judge is required to consider a parent’s unproven “potential.” Instead of giving primary consideration to which parent actually took care of the child throughout his or her life, the Court must give equal weight to the other parent’s “potential.”

But here’s the problem — How many people do you know who never lived up to their potential? How many athletes were top draft picks but never became stars? How many employees were promoted but never became effective managers or supervisors? — How many moms or dads were excited when their baby was born but never became active and involved parents? In my opinion, it is a huge mistake to emphasize “potential” over actual experience, or even to give it equal weight. Because past history is the best predictor of future behavior. Thus, by putting too much stock in “potential,” the danger of a bad outcome is evident. And in the end, when a father or mother is awarded equal parenting-time and decision-making authority and never lives up to his or her potential, it is the children who suffer.

Of course, there will be parents who were stay-at-home moms or dads during the marriage, but will have to work full time after the divorce – and the fact that both parents will now be working should be taken into consideration by the Court in formulating a parenting plan. In that sense, the other parent’s potential to become a competent caregiver would come into play. However, it should be just one of many factors the judge considers in determining what is in the best interest of the child.

Fathers’ rights advocates maintain that an assumption of equal parenting time and decision-making is necessary because mothers were previously favored in custody disputes. Hey, I’m a father, and nothing is more important to me than my children. And, yes, it is true that there was a time when mothers typically received custody of children. But that was during an era when women were faced with societal and social barriers that made it difficult for them to obtain a college education or executive-level employment, or even a decent-paying job, and which practically forced them to be “housewives” and stay-at-home caregivers of children. Today, many of those barriers have been knocked-down, and glass-ceilings are being shattered. Recent studies show that over sixty-percent of all college students today are women. This means that in the future more mothers will be the family breadwinners; and more fathers will become stay-at-home parents. Therefore, for a judge to make a blanket assumption of equal parenting time and decision-making authority is unfair to both Mothers and Fathers.

In Arizona and other states across the country, the growing trend in custody cases is to award the parents equal decision-making authority and parenting time. That’s not a bad thing, so long as the parents are equally involved in raising their children. The experts agree that it is best for children to have both parents actively involved in their lives, and that effective co-parenting helps to ensure that children will grow up to be healthy and productive adults. But to make custody decisions based on a simple assumption that both parents are equally capable – when they may not be – is a colossal mistake. One that can harm the children in the long-run.

The care of children is too important to make broad assumptions, let alone instituting legal presumptions, regarding decision-making and parenting time. In the real world, parents are not always equal caregivers. Sometimes the mother is the more responsible parent; sometimes it is the father who is the nurturer and is in a better position to provide for the children’s needs; and in many cases both parents are loving, capable caregivers who are willing to co-parent their children (that is, obviously, the best scenario).

Rather than making assumptions, the Court should start with a blank slate when crafting a parenting plan. The judge should carefully examine the capabilities of each parent, the factors contained in Arizona’s custody statute (A.R.S. §25-403), and all other relevant factors. The judge should take a close look at who has been the child’s primary caregiver, and also consider the potential future relationship between the parents and the child. But the needs of the child should always come first. By taking this approach the Court can ensure that the best interest of the child is protected.

 

At the Law Firm of Gary J. Frank P.C., both Gary Frank and attorney Hanna Juncaj are strong litigators and compassionate counselors. Gary Frank is a Family Law Attorney with over 30 years of experience as a litigator and mediator, which includes having acted in the capacity of a Judge Pro Tempore in the Maricopa County Superior Court; and serving on the Governor’s Child Abuse Prevention Task Force. Hanna Juncaj is a highly-skilled attorney with a passion for Family Law and children’s issues. She has extensive courtroom experience, and is also a certified mediator. In addition, Hanna is an active member of her County Bar Association. We handle Family Law cases in the areas of divorce, custody (now called “Legal Decision-Making and Parenting Time), relocation (move-away), division of property, spousal maintenance and child support, modification and enforcement actions, grandparent and non-parent rights, and all other matters pertaining to families and children. To learn more about our firm, check us out on Facebook, Linkedin-Gary Frank, and Linkedin-Hanna Juncaj. If you are in need of a consultation, please do not hesitate to call our office at 602-383-3610; or you can contact us by email through our website at www.garyfranklaw.com.   We look forward to hearing from you.

 

CO-PARENTING vs. PARALLEL PARENTING – WHICH IS BEST FOR YOU?

In every divorce involving legal decision-making and parenting time issues, parents must strive to keep the needs of the children as their #1 priority.  Children benefit most when they have relationships with both parents and tend to adjust better to divorce when:
·       They have healthy and happy relationships with both of their parents;
·       Parents don’t argue in the presence of their children;
·       Parents don’t place their children in the middle of disputes; and
·       Both parents are responsive to the needs of their children.
CO-PARENTING
“Co-parenting” describes a situation where the parents are not married, cohabitating or in a romantic relationship with one another.  Co-parenting often involves a parenting situation in which two separated or divorced parents communicate and work together to take care of their children.  Co-parenting can also describe a situation where, after a divorce, the child’s parents desire to maintain equal or equivalent responsibility for their children’s upbringing.  When successful, Co-parenting is a wonderful opportunity for children of divorce to still have access to both parents and retain a sense of family dynamic.  To come to a workable co-parenting arrangement, the parents must consider various factors, including:
·  What decisions need to be made? These commonly consist of decisions regarding education, extracurricular activities, medical treatment, sporting and social activities, religion, etc.
·      How will you make the decisions?  Will you meet in person to discuss decisions?  Will you communicate over the phone?  Email?  Text?
·     How will you share schedules?  How flexible do you want to be in scheduling?  When will the children see each of their parents?  What if one parent is late —  how will you deal with this?  Will the schedule remain the same as the children get older?
·     How will you handle discipline? How can you try to be on the same page when it comes to discipline? How will you communicate when a problem arises? Will each parent handle discipline on his and her own? If a child misbehaves at mom’s house, should he be disciplined by both parents or just mom?  If a child misbehaves in class, should she receive discipline from both parents or just the one she is returning home to?
·   What will happen in an emergency?  Have you provided your ex-spouse with all emergency contact information?  Will the parents notify one another before emergency medical treatment?
·      How will you handle disputes? If the parents cannot agree on a disciplinary issue, how will you deal with it? Is there a mutually-trusted family member or a friend who can help you discuss the matter? If the disagreement involves a medical decision, can you ask the doctor for guidance and advice? Or, if the dispute is an especially difficult one, will you seek the help of a professional mediator?
Because parenting involves a substantial number of decisions in all aspects of the child’s life, it is helpful to draw up a chart listing certain decisions and who should make them.  Here’s a brief example:
Who makes decisions regarding:
Mom
Dad
Together
HOUSEHOLD RULES & CHILDCARE
Allowances
Bedtime
Clothing
Grooming
Computer, software, and video game use
Television shows (which shows, what time)
Cell Phone, Computer, & Internet use
Meals
Toys
Handling behavior problems
RESIDENTIAL
Living situation
Transportation
SOCIAL LIFE
Dating
Driving
Friends
Sports & Social Activities
Sharing Cost of Activities
EDUCATION & MORAL TRAINING
Morals, values
Religion
Choice of Schools
Helping with homework
After school care
Extracurricular Activies &
Expense Sharing
HEALTH
Dentist
Doctor
Medication
Major medical issues
Psychological counseling, if applicable
Unfortunately, harmony cannot be achieved in every case despite both parents’ best efforts to cooperate.  When parents are unable to co-parent in a healthy, effective way that is in the best interests of their children — or when one of the parents refuses to cooperate — it can be a source of great conflict and stress for everyone involved. Many studies have found that most children of divorce grow up to be healthy, well-adjusted adults; however, children who are raised in corrosive, high-conflict parental situations are at risk to develop emotional problems that can last a lifetime. Sometimes, divorced or separated parents simply cannot work together, despite all their efforts. When that is the case, they should consider using a technique known as “Parallel Parenting.”
PARALLEL PARENTING
Parallel Parenting is a type of parenting arrangement that is best in situations of high conflict where parents have different parenting styles and can’t see eye-to-eye on even the most basic issues.  It is a form of co-parenting where a mother and father reduce the level of conflict through disengagement.  Specifically, they have limited direct contact with each other. And when they do communicate, it takes place in a more structured manner, such as through email.  Each parent sets rules for his/her own household (bedtimes, homework, TV or computer times, discipline, etc.), without concern that they may be different than the rules that are in place in the other parent’s household.  Some principles to keep in mind include:
·       Parents must never use their children as messengers to communicate back and forth;
·       All communication must be business-like in nature and relate to information relevant only to the children’s well-being;
·       Schedules should be shared via a calendar or in writing;
·       No changes to the parenting-time schedule should be made without written agreement.
Parallel parenting, if done the right way, can provide children of divorce or separation with the same sense of fulfillment and happiness as a healthy co-parenting relationship.  Because parallel parenting is normally employed when parents disagree with one another to the point that they cannot communicate effectively, those in parallel parenting arrangements should remember that their exes are their children’s parents and, for that reason alone, they deserve respect.  Keeping differences with one’s ex away from the children will open opportunities to move beyond divorce in the future.

 

Whether one decides to co-parent or try out parallel parenting, the main concern should always be what is in the children’sbest interests.

Gary Frank & Jacinda Chen

 

At the Law Firm of Gary J. Frank P.C., both Gary Frank and attorney Hanna Juncaj are strong litigators and compassionate counselors. Gary Frank is a Family Law Attorney with over 30 years of experience as a litigator and mediator, which includes having acted in the capacity of a Judge Pro Tempore in the Maricopa County Superior Court; and serving on the Governor’s Child Abuse Prevention Task Force. Hanna Juncaj is a highly-skilled attorney with a passion for Family Law and children’s issues. We handle Family Law cases in the areas of divorce, custody (now called “Legal Decision-Making and Parenting Time), relocation (move-away), division of property, spousal and child support, modification and enforcement actions, grandparent and non-parent rights, and all other matters pertaining to families and children. If you are in need of a consultation, please do not hesitate to call our office at 602-383-3610; or you can contact us by email at [email protected], or through our website at www.garyfranklaw.com.   We look forward to hearing from you.

 

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