Category Archives: Modification Actions

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

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

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

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

But not anymore.

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

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

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

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

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

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

 

 

At the Law Firm of Gary J. Frank P.C., both Gary Frank and attorney Hanna Juncaj are strong litigators and compassionate counselors. Gary Frank is a Family Law Attorney with over 30 years of experience as a litigator and mediator. He has also acted in the capacity of a Judge Pro Tempore in the Maricopa County Superior Court, and served on the Governor’s Child Abuse Prevention Task Force.  Hanna Juncaj is a highly-skilled attorney with a passion for Family Law and children’s issues. She has extensive courtroom experience, and is also a certified mediator. In addition, Hanna is an active member of her County Bar Association.  We handle Family Law cases in the areas of divorce, custody (now called “Legal Decision-Making and Parenting Time), relocation (move-away), division of property, spousal and child support, modification and enforcement actions, grandparent and non-parent rights, and all other matters pertaining to families and children. If you are in need of a consultation, call us today at 602-383-3610; or you can contact us by email through our website at www.garyfranklaw.com.   We look forward to hearing from you.

 

 

 

SAY GOODBYE TO CUSTODY

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Custody is now a relic of the past.  The Arizona legislature has spoken, and the term “Custody” has been banished from our statutes.  Beginning on January 1, 2013 parents coming before our courts will not be awarded sole custody, or joint custody . . . or any kind of custody.  Custody is dead and buried.  It has been replaced by the terms: “Legal Decision-Making” and “Parenting Time.”  From now on, the Arizona courts will either enter an order awarding joint legal decision-making to both parents; or they will give one parent the right to make decisions regarding the children.  The court could also split the decision-making rights and responsibilities between the parents (for example, the mother might be given the right to make medical decisions while the father has the right to make educational decisions).
Some experts view this new arrangement as an earth-shaking philosophical shift that will lead to a significant change in the way the courts decide family law cases.  Other experts take the position that the wording of the statutes is merely a matter of semantics, and that things will not change much at all.  Only time will tell.  Over the next year, as the law unfolds, I will keep you apprised of how the courts are interpreting the newly revised statutes.
For several years now, there has been a trend in this and many other states to award joint custody (rather than sole custody) in the typical family law case; and, today, court orders for equal parenting time and decision-making have become commonplace.  This represents a real departure from the past, when the vast majority of cases ended up with the children living primarily with one parent.  The recent changes to Arizona family law seem to reflect an extension of this trend.  While the statute does not contain a specific “presumption” of equal time and decision-making, at least one judge who has worked on the new law believes that joint decision-making and equal parenting time will now be the “starting point” for judges in determining family law disputes.
This new philosophy is revealed in the language added to A.R.S. §25-403.02.  Section B of the statute states: “Consistent with the child’s best interests in section 25-403 and sections 25-403.03, 25-403.04, and 25-403.05, the court shall adopt a parenting plan that provides for both parents to share legal decision-making regarding their child and that maximizes their respective parenting time.  The court shall not prefer a parent’s proposed plan because of the parent’s or child’s gender.” (Emphasis added.)
A.R.S. §25-403 contains the factors that the Court will use in deciding what type of parenting arrangement is in the best interests of a child.  In the past, the court considered, as a factor, “whether one parent, both parents or neither parent has provided primary care of the child.”  However, that factor has been removed from the new statute.  Instead, the court will now consider “the past, present and potential future relationship between the parent and the child.”  Some experts are disturbed by this change.  They argue that a parent’s track-record of providing primary care is important evidence that should be considered by the court in determining the type of parenting arrangement that would be in a child’s best interests.  Other experts disagree and point out that after the divorce, both the father and the mother will probably have to work full-time, and each of them will be required to “step-up” and become single parents. Therefore, in making its decision, the court should consider not only the past and present, but also the anticipated future relationship between the parents and the children.  They argue that because a parent was not the primary caregiver in the past does not mean that he/she is incapable of nurturing and providing excellent care of the children in the future.  This issue will certainly be a hotly contested one in family law litigation during the coming year.
Another new factor for the court to consider in applying A.R.S. §25-403 is contained in Section 7.  This section states that, in deciding which type of parenting arrangement is in the children’s best interests, the judge shall consider “whether one parent intentionally misled the court to cause an unnecessary delay, to increase the cost of litigation or to persuade the court to give a legal decision-making or a parenting time preference to that parent.”   The apparent purpose of the new provision is to place both parents on notice that if either one of them makes a false or improper allegation, or attempts to expand or delay the litigation, or acts in an unreasonable manner, it could be a basis for the court to take legal decision-making and/or parenting time away from that parent.  (To put it in terms of the old statute, if the judge believes you have acted unreasonably during the litigation, it could result in you losing custody of your children.)
Domestic violence continues to be an important factor that the court will consider in making its determination of legal decision-making and parenting time.  But based on the language of the new statute, the presence of domestic violence now takes on even greater importance.  The legislature has added a new factor to A.R.S. §25-403 which requires that the court shall consider “whether there has been domestic violence or child abuse pursuant to section 25-402.03.”  That section mandates that “joint legal decision-making shall not be awarded if the court makes a finding of the existence of significant domestic violence pursuant to section 13-3601 or if the court finds by a preponderance of the evidence that there has been a significant history of domestic violence.”  The statute also states that “the court shall consider evidence of domestic violence as being contrary to the best interests of the child.”  Under the law, abuse of a spouse is considered to be akin to child abuse, leading to “a rebuttable presumption that that an award of sole or joint legal decision-making to the parent who committed the act of domestic violence is contrary to the child’s best interests.”

Under A.R.S. §25-403 if the court determines that a parent has abused drugs or alcohol or has been convicted of a substance abuse offense within twelve months before a petition or request for legal decision-making or parenting time is filed, there is a rebuttable presumption that sole or joint legal decision-making by that parent is not in the child’s best interests.  What constitutes “abuse” of drugs or alcohol is not defined in the statute.  The issue will surely be the subject of much litigation in 2013 and beyond.

The Arizona legislature made a number of other important changes, as well, especially in the area of Third Party Rights (such as grandparent and non-parent visitation and legal decision-making); and in the area of Sanctions for Litigation Misconduct.

Arizona’s new approach to what was formerly known as “custody” is groundbreaking.  It is at the forefront of a growing national trend which views divorced parents as partners in raising children.  But is this view realistic?  Will it protect the best interests of children in divorce cases, or will it hurt them?  The answers to these questions will be determined as the new law unfolds.

 

Gary J. Frank is a litigation attorney and mediator with over thirty years of Family Law experience in dealing in divorce, custody, and parenting issues. Mr. Frank has served on the Governor’s Task Force for Prevention of Child Abuse, and has received a Volunteer Lawyer award from the Maricopa County Bar Association for his work with children. For many years he acted as a Judge Pro Tempore in the Maricopa County Superior Court, which gave him an insight into the inner workings of the courts that many attorneys lack. He can be reached by telephone (602-383-3610); or by email at [email protected]; or through his website at www.garyfranklaw.com. If you are in need of a consultation regarding any area of Family Law, please do not hesitate to contact us today.

 


EMBRACING CHANGE

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“Change is constant.  For some people, especially those who come from bigger companies, the constant change can be somewhat unsettling at first.  We must all learn not only to not fear change, but to embrace it enthusiastically and, perhaps even more important, to encourage and drive it.  We must always plan for and be prepared for constant change . . . Never accept or be too comfortable with the status quo, because the companies that get into trouble are historically the ones that aren’t able to adapt to change and respond quickly enough.”


Tony Hsieh
CEO of Zappos.com
from the book, “Delivering Happiness”


The need to embrace change applies to all of us, in both our personal lives and at work.   Over the years, the practice of law has seen enormous changes.  The  most successful lawyers are the ones who not only accept, but embrace, change.  Our attorney, Gary Frank, remains on the “cutting-edge” of Family Law by staying up to date with the latest statutes passed by the Arizona Legislature, and by studying the new decisions handed down by the Supreme Court and Appellate Courts.  He improves his knowledge of the law by attending continuing legal education courses on a regular basis throughout the year.  And he hones his courtroom skills by using the very best litigation practices and strategies.

Many law firms are locked into a particular office location that is often difficult or inconvenient for clients to visit.  But modern advances in technology, such as networked computers, laptops, tablets, smart phones, and the internet, have allowed lawyers to become “road warriors” and provide top-notch representation while being more accessible to their clients.  Therefore, the Law Offices of Gary J. Frank are conveniently located throughout the Valley — in Scottsdale, Paradise Valley, Tempe, and the prestigious Biltmore area of Phoenix — in order to better serve our clients.      

Yes, change is, indeed, constant; and our ability to embrace change has enabled us to be successful.  But, just as importantly,  our attorney, Gary Frank, is also known for embodying qualities that are timeless and enduring:  Experience; Excellence; Integrity; Strong Advocacy; Common Sense; and and a Commitment to always putting his clients first.  We are a modern law firm with old fashioned values.  That’s what sets us apart.

Our attorney, Gary Frank, has been a courtroom litigator in the Family Law arena for over thirty years, and is a strong and committed advocate for his clients.  In addition to being a litigation attorney, Mr. Frank has acted in the capacity of a Judge Pro Tem in the Maricopa County Superior Court.  This has given him an understanding of the inner-workings of the court, and a unique perspective  that most attorneys lack.  He has also acted, for many years, as a professional mediator of Family Law disputes.   We handle a full range of Family Law matters, including divorce, custody, spousal and child support, division of property and assets, modification and enforcement actions, as well paternity/maternity cases, grandparent or non-parent custody and visitation actions, and relocation/move-away cases.  If you are in need of a consultation regarding any area of Family Law, please do not hesitate to give our office a call today at 602-383-3610; or feel free to contact us through our web site at www.garyfranklaw.com; or by email at [email protected]   We look forward to hearing from you.

ATTORNEY FEE AWARDS – Restoring the Balance of Power

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If you are involved in a divorce and/or custody case and are afraid that you don’t have the financial resources to stand up and fight for your rights, here’s the good news — Attorney Fee Awards, under Arizona law, are the great equalizer.
It is not uncommon, in a divorce or custody case, for one party to have a much higher earning capacity than the other party.  Sometimes the party with the greater earning ability will use that power as a hammer, bullying the poorer party with threats or making her/him spend money on litigation until those resources are exhausted.  “You don’t have the money to fight me, so you might as well take what I’m offering.”  That’s a familiar refrain in Family Court cases.  But know this:  If you are the party with the lesser resources in a divorce or custody matter, you do not have to allow yourself to be “steamrolled.”  Arizona has laws that can help you level the playing-field, so that you can assert your legal rights.
Arizona Revised Statutes, Section 25-324 provides that “The court from time to time, after considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceeding, may order a party to pay a reasonable amount to the other party for the costs and expenses of maintaining or defending (the litigation).”
What this means is that the judge can force the party with the greater resources to pay the poorer party a reasonable amount to cover his/her attorney fees and litigation expenses.  The poorer party can file a motion for an award of attorney fees at the beginning of the case, or at any other stage of the proceeding.  It can be done more than once, if necessary.  The judge will set a hearing date and the party will be able come into court to explain why she or he is in need of help paying attorney fees.  If there is a significant disparity of income or resources between the parties, or if one party has been bullying the other or acting unreasonably, then the judge has the authority to make an attorney fee award.
Another statute, A.R.S., Section 403.08, provides that “(A) In a proceeding regarding sole custody or joint custody, either party may request attorney fees, costs and expert witness fees to enable the party with insufficient resources to obtain adequate legal representation and to prepare evidence for the hearing; (B) If the court finds there is a financial disparity between the parties, the court may order payment of reasonable fees, expenses and costs to allow adequate preparation.”

This statute is similar to A.R.S., 25-324 but applies to non-divorce cases involving custody, such as Modification of Custody actions, Paternity, Grandparent, and Non-Parent custody matters, etc.

The Arizona Courts have explained that the purpose of the statutes allowing the court to make an attorney fee award is to provide a remedy for the party least able to pay; and to insure that the poorer party has the means to litigate the action free of the other’s hold on the family finances.

By making an award of attorney fees in a divorce and/or custody case, the court can place the parties on a level playing-field and restore the balance of power.

If you are in need of help in your divorce or custody case, contact our office today.  You can call us at 602-383-3610 or email us through our web site at /.

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