THE THREE MAJOR BENEFITS OF MEDIATION IN FAMILY LAW CASES

  1. Saves Time and Money

Mediation is almost always significantly quicker and less expensive than litigation. For divorce and custody cases, or any other type of dispute, mediation is a more peaceful and cost effective alternative.  In mediation, a mutually acceptable resolution can often be reached in a day, or in a few sessions over the course of a number of weeks. In contrast, litigation can drag on for months or even years. In litigation, communication typically takes place between the attorneys by letters or emails, and disputes are resolved in court hearings before a judge, causing lengthy delay. On the other hand, Mediation’s efficient approach to information-gathering and decision-making allows for rapid progress to be made. If an issue or a dispute arises in mediation, it can be addressed immediately, while the session is taking place.

The quick timeframe of mediation can also shorten the amount of time that family members have to endure the stress and anxiety of unresolved issues and unknown futures, and it can save tens-of-thousands of dollars in attorney fees and litigation expenses. This is a huge benefit of mediation.

  1. Reduces Stress

In most situations, mediation is far less stressful than litigation. The main reason for this is because mediation is conducted in a neutral setting, like a mediator’s office or conference room (or these days, even by Zoom), rather than in a courtroom. And the mediator is a professional neutral who does not represent either party. The mediator does not have the power of a judge and cannot impose a judgment on either of the parties. His/her only job is to help the parties reach a mutually acceptable resolution. Most of the time, the mediator, the parties, and their attorney (if they have one) will sit in one room around a table and discuss all of the issues. In more high conflict situations, the mediator may place both parties in separate rooms, and go back and forth between them to try to negotiate a solution without any direct contact between the parties.

Another reason that mediation is less stressful is because there is much more flexibility than in litigation. This flexibility allows for a cooperative approach rather than a combative engagement where everyone is left feeling exhausted and frustrated.

  1. You Remain in Control

Mediation is a voluntary and confidential process where the parties participate in the discussions and decisions. The mediator is acting as a facilitator and not as a judge, and either party is free to walk away at any time if they decide they no longer wish to participate. This gives each party a real sense of control, as opposed to litigation, where getting up and walking away is not an option and a judge has the power to impose a solution on the parties that neither of them may be happy about.

I recently went in front of a judge who told my client and the opposing party, “I don’t know you, and I don’t know anything about your family. If you proceed with litigation, I will listen to you both for probably a total of 3 hours at trial, and then I will have to decide how your property is divided and how you raise your children. If you can resolve this outside of court, you will save time, money, and stress, and most importantly, you will have some say in the outcome.” — This really resonated with my client, and quite frankly it resonated with me. Mediation allows for both parties to have control over the process and the result. This control can be extremely empowering. A mediator will work with both parties to help them make decisions that are in the best interests of their family.

The bottom line is this: If parties are able to negotiate a mutually acceptable agreement in mediation, they tend to be happier with the outcome and are far less likely to return to court for future disputes and have to spend money on attorneys and courtroom battles.

At the Law Office of Gary J. Frank P.C., our attorneys are experienced mediators who can explore options and help parties negotiate an agreement peacefully and less expensively. When we are not acting as mediators, but rather representing clients in litigation, we often recommend that they participate in mediation with another experienced mediator. In that setting, we can appear with our client at the mediation and help them negotiate an agreement from a position of knowledge and strength.

If you are interested in mediating your Family Law dispute, feel free to call us today.

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. Logan is passionate about children and families, and provides expert representation for her clients. 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 A-B-C’s of Divorce

Divorce can be stressful and confusing. It’s always good to have a plan. So to assure that your divorce goes smoothly, follow these steps – from A to Z. 

A – Ask questions – If you have a question for your attorney, ask it! Asking questions can help you to stay informed and ease any anxiety you may have.

B – Be smart – Think about everything you do and say before you do it, or say it. You should always assume your ex (or soon-to-be-ex) is recording your phone conversations and taking screen shots of your texts, emails, and posts on social media, and that the judge will eventually see them.

C – Create a checklist of things you need to do – After you make the decision to get a divorce, start keeping a list of things you need to do (get any documents together, speak with an attorney, etc.) It will keep you well-organized and prevent you from forgetting something important.

D – Don’t get caught up in your feelings – Try not to make decisions based on your emotions throughout this process. Wait until the storm has passed and you can think more clearly. That’s not to say you can’t have feelings and emotions—you can, and you should. Allow yourself to feel however you are feeling, but don’t act in the heat of the moment; you’ll certainly regret it later.

E – Every case is different – You may have one friend who is telling you how quick and easy her divorce was, while your other friend went through a divorce that took years and was extremely high conflict. Don’t compare yourself to others. Every case is truly so different!

F – Focus on the moment – Take things one step at a time. Thinking about the past and dwelling on things you both could have done differently will not help, nor will thinking about the future and worrying about how things will change. Live in the moment and take it day by day.

G – Get your documents organized – Organize everything! Get copies of any tax and income documents, bank and credit card statements, signed contracts, real estate documents, insurance policies, documents related to investments or retirement accounts, estate planning documents, etc. Getting things together now will save you lots of time, energy, and money in the future!

H – Have reasonable expectations – Try and remember that sometimes things are not as quick and easy as you’d like. Be patient and understand that the divorce process can be long and often exhausting. Try to manage your expectations and be as realistic as possible. If you’re not sure what to expect, talk to your attorney.

I – Identify what makes you happy – Focus on what makes you happy during this difficult time of your life. Find a new hobby, spend time with friends, practice self-care, etc. Do whatever you have to do to feel good!

J – Journal – Keeping a journal is probably one of the best decisions you could make throughout this process. In this journal, jot down all events involving custody and visitation, any conversations you might have had with your soon to be ex, etc. You don’t have to include too many details—just keep it accurate and to the point. That journal could later refresh your memory when the trial rolls around, and you might be able to use it in court to prove that something happened on a certain date.

K – Keep the other parent informed – If you have children, make sure you are keeping the other parent in the loop. Let them know if the child is sick and you made a doctor’s appointment; or of any upcoming school events, conferences, breaks, etc. Send them copies of any report cards, doctor’s notes, and anything else you think they might want to see. Having a good co-parenting relationship with your ex will help your children tremendously in the future.

L – List out your property – On top of compiling lots of documents, it will be super helpful for you to make a list of all your property, such as furniture, vehicles, and other personal items. Be sure to differentiate between property you came into the marriage with, property you got during the marriage, and property you received by gift or inheritance.

M – Manage your stress and anxiety – Try and deal with any stress or anxiety you may have in a positive way. Don’t look to drugs or alcohol, that will certainly not help you in the long term. Getting outside, exercising, eating right, meditating, and practicing self-care are all really great ways to manage your stress and anxiety. It’s also never a bad idea to speak with a licensed therapist; they can teach you techniques to manage your stress and help you talk through your feelings in a really positive way.

N – Never share with others what you have discussed with your attorney – Conversations you have with your attorney and their staff are protected by attorney-client privilege. Once you share what was discussed in your conversation with others, that conversation is no longer privileged and confidential, and you or your attorney could be forced to disclose it in court.

O – Oaths are taken seriously by the court – When you sign court documents, speak in a deposition, or speak in court, you are doing so under oath. Any discrepancies in your stories will lead to a loss of trust by the judge and ultimately can subject you to perjury. Just tell the truth and you will not have to worry!

P – Pace yourself – Divorces can take quite a while to be finalized. Be patient and don’t rush it!

Q – Qualifications are important, but so is how an attorney makes you feel – When you are looking for an attorney, don’t just look at their credentials. While credentials and experience are extremely important, so is how you “click” with your attorney. An attorney should make you feel comfortable and heard.

R – Refrain from speaking negatively in public about your ex – This is truly one of the most important pieces of advice I could give to someone go through divorce. Do not speak negatively about your ex to others, do not speak negatively about them to their friends or family, and most certainly do not post about them on social media!!! This is especially true if you have children. It will not do you any good to badmouth your ex, and it could hurt your court case.

S – Substantiate your claims – Document everything! Organize documents you already have and keep any documents you get throughout this entire process. On top of important documents like tax returns and bank statements, keep other documents like photos, copies of emails, and copies of text messages. These may all be helpful throughout your case.

T – Talk about alternatives to litigation – We believe it is never a bad idea to look to alternatives to litigation, such as mediation, whenever possible. Mediation can be a really peaceful, cost-effective option for both parties. It allows you to be in charge of negotiating the terms of your own divorce and property division, rather than leaving those important decisions to a stranger (the judge).

U – Understand the law and your rights – While it is important to trust that your attorney has a good understanding of the law and your rights, it’s also very important for you to have a basic understanding of those things, too. Having a genuine understanding of the law will help you to make the best decisions possible for you and your family. Take the time to do some research, read some books, and most importantly, ask lots of questions of your attorney.

V – Value the advice you are given – Those who truly value and consider the advice they are given by their attorney are those that are most successful. With that being said, ultimately only you know what’s best for you! Don’t be afraid to talk to your attorney if you are uncomfortable about the case plan.

W – Work hard to keep the peace – It can absolutely be difficult at times to deal with an ex without losing your cool. However, the more you keep the peace, the easier and quicker the process will be! (P.S. – Compromise is a good thing, but that doesn’t mean giving-in to unreasonable demands.)

X – Xpect some stress – Okay, I know this doesn’t actually start with an “x” but it’s close enough! Throughout the process, you can expect that there will be some stress. You will likely feel overwhelmed at times. If you don’t feel like you can deal with the stress on your own, look to a licensed counselor to help you get through it, and lean on family and friends as a source of support.

Y – You do have some control over the outcome – While ultimately there are some parts of divorce that you do not have control over, there are some parts that you do. Make wise decisions, and when in doubt, ask your attorney for advice before you act.

Z – ZZZ (Get some rest!) – Ok, “z” is a hard letter to come up with something for! But really, get those “ZZZs” and make sure you sleep well. Being well rested will help you mentally, physically, and emotionally.

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.

 

Five Tips For Dealing with the Stress of a Separation or Divorce

 

Going through a breakup, separation, or divorce, can be really tough. It can turn your world upside down and make it difficult to stay positive. To make sure you stay emotionally strong and healthy, it’s important to learn how to deal with divorce stress in a productive way.

Here are some tips on how to cope with the stress of a separation or divorce:

  1. Take care of yourself emotionally and physically

It is so important to take care of yourself both emotionally and physically while you are going through a breakup. It can be very easy to spend your days watching sad movies in bed, eating ice cream straight out of the pint and drinking a bottle of wine. After all, that’s what the movies say you’re supposed to do, right? Well in reality, doing that won’t be beneficial to you physically or mentally in the long run. Instead, take time out to exercise, eat well, and relax. Do things that nurture you. Read a good book, get plenty of rest, take a hot bath, develop a new hobby, explore nature, surround yourself with positive people. Now is the time to practice “self-care,” whatever that means to you!

  1. Give yourself permission to “feel all the feels”

Coping with separation or divorce is often compared to coping with death. This makes sense because essentially you are grieving the loss of a marriage. With grief comes a whole range of emotions. Let yourself feel whatever you are feeling and know that it’s normal and healthy. Don’t feel bad for feeling bad, and definitely don’t feel bad for feeling okay. Once you let yourself go through the grieving process, it will be easier to move on.

  1. Don’t make any hasty decisions

As you navigate through such a stressful period in your life, try not to make any major decisions or changes. It can be very difficult to make great decisions when you are literally going through such a difficult time. Be patient with yourself—take it one day at a time until you feel as though your head is clear, and you are ready to make rational decisions, not ones driven by emotions

  1. Find your support system

Don’t go through this period of your life alone. This is the time to find your people. Whether it’s friends, family, a therapist, or a support group, lean on people that build you up and help you to be the best version of you. Try not to isolate yourself, no matter how hard it may be—push yourself to get out, socialize, and enjoy life with others

  1. Think positively and move on 

Easier said than done, right? It can be extremely difficult to maintain a positive attitude during this time but try your best. Keep realistic expectations, be flexible, focus on the good things in life, and surround yourself with happy things. Take the time you need to heal from the breakup and those feelings of loss. You will get through this!

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.

 

 

PREMARITAL AGREEMENTS ARE A WISE MOVE

Premarital Agreement Basics

In the past ten years or so, there has been a significant rise in couples exploring the option of entering into premarital agreements. Many soon-to-be-married couples often avoid the topic of premarital agreements as they feel it could be detrimental to their relationship. This makes sense, since you’re essentially negotiating what would happen in the event of divorce. However, in many circumstances, it can be a really smart thing to do both financially and emotionally. Experts agree that a premarital agreement can be a very wise decision, not only because it outlines a couple’s finances, but because it can prevent a costly and contentious divorce proceeding if the marriage doesn’t work out in the future. So, in that sense, it can actually take the pressure off a newly married couple.

Here are the basics when it comes to a premarital agreement:

What is a premarital agreement?

A premarital agreement (also commonly called a prenuptial agreement or a “prenup”), by definition, is a written contract in which an engaged couple states their rights and responsibilities regarding premarital and post-marital assets and debts, including what would happen should their marriage end in divorce or death.

How much does a Premarital Agreement cost?

The cost of a premarital agreement greatly depends on the complexity of the issues and the amount of assets and debts to be protected, but it is far less expensive than the cost of a contested divorce litigation.

Who Needs a Premarital Agreement?

Of course, anyone can get a premarital agreement if they would like. However, there are certain circumstances in which it would be recommended. These circumstances include when one or both parties have children; when one or both parties have been previously married and divorced; when one or both parties own a home; when one or both parties own a business; or when there is a significant difference in wealth and/or debt between parties. People in these circumstances often have a greater interest in protecting their rights (particularly their financial rights) than those who are not in these situations.

 How do I get a Premarital Agreement? What does the process look like?

Typically, one party, usually the higher earning party, will retain an attorney to create a draft of the agreement. After that draft is completed, the other spouse will have their own attorney look it over, negotiate terms, and make suggestions for possible changes and edits. Once both parties and their attorneys have approved the final draft, the contract must be signed and executed.

Depending on the complexity, a premarital agreement can take anywhere from a few months to a few days, but it certainly is not the best idea to wait until right before the wedding to begin consulting with attorneys.

Do you have to have separate lawyers?

It is advisable for both parties to have their own attorneys. Having separate lawyers ensures that both parties’ interests are represented fairly. It will also make it more difficult for a party to challenge the provisions in the future.

One lawyer cannot, or at least should not, represent both parties as there would be a conflict of interest. Additionally, while it is not required that both parties consult with an attorney, we recommend it, because if one party has an attorney and the other does not, the party without an attorney will be at a significant disadvantage.

 Can you set the terms for child support and custody in a Premarital Agreement?

In Arizona, you cannot set the terms for child support or custody in a Premarital Agreement due to public policy concerns. The Family Court has the ongoing right to set or change the terms of legal decision-making authority, parenting time, and/or child support at any time, now or in the future. If the parties divorce, the courts will deal with those issues at that time. But keep in mind that while a parenting plan is not enforceable without a judge’s approval and signature, a Premarital Agreement is enforceable as a binding contract as soon as it is signed by the parties.

A Final Thought

Today many people are marrying later in life, after they are already established in their careers and have accumulated significant assets, and sometimes after they have been previously married and divorced. Blended families, in which each spouse has their own children from a prior relationship, are common. As a result, the need to protect assets is greater now than ever before. This makes entering into a premarital agreement a wise move.

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.

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.

 

Everything You Need to Know About Social Security and Divorced Spousal Benefits

This article was originally published in “The Street”

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

 

As Baby Boomers continue to have higher and increasing divorce rates than other age groups, divorce later in life can bring increased retirement risks – there is less time (a shorter investment horizon) and opportunity to recover from losses. This creates more vulnerability to market fluctuations and retired spouses may also be confronted with unplanned liquidity needs that can no longer be met with wages or a salary.  Social security benefits can be an important part of a retirement income puzzle if you experience a late-life divorce..

Retirement and Social Security on their own are two complex financial planning topics.  Then  layer in divorce and things become even more complicated and confusing.  So let’s look at  some of the myths arounds Social Security so better informed decisions can be made when divorce or remarriage coincide with Social Security claiming.

Common Myths about Divorce and Social Security Claiming

Below are some of the misconceptions around Social Security benefits that may influence decisions around divorce or your retirement plan:

  • More than one spouse/ex-spouse can’t claim a Social Security benefit on a wage earner
  • He/she has remarried, so an ex-spouse can’t claim a Social Security benefit on their previous spouse’s earning record
  • If she/he claims a benefit on my work record I will receive a reduced benefit
  • My ex-spouse will find out if I claim a Social Security benefit on His/Her earning record
  • If we divorce, I receive all of her/his Social Security benefit
  • If we divorce, I receive my own Social Security benefit as well as ½ of his/her benefit
  • I can’t claim Social Security benefit based on my former spouse’s earning record because it was dis-allowed in my divorce settlement
  • I can’t claim a Social Security benefit based on my ex-spouses earning record and let mine grow (See the tip in Claiming on an Ex-Spouse’s Record below.)

The wording can be misleading, and there are some half-truths here so let’s explore some of this further in a general sense.

Basic Facts about Divorce and Social Security

When we’re talking about Social Security, marriage and divorce, 10  is the magic number of years married for someone to be eligible for Social Security or survivor benefits, based on the earning record of an ex-spouse. This is explained further in the “Claiming Social Security” section below.

From what I’ve read, the Social Security program has its own rules, just like the IRS, and those rules can’t be overwritten in a divorce settlement by state divorce law. So if your previous divorce settlement says you can’t collect Social Security benefits on your ex-spouse’s earning record, or your soon-to-be ex-spouse wants that added to your settlement agreement, contact the Social Security Administration for clarification at 800-772-1213 and peace of mind 

Additionally, both a current spouse and ex-spouse, can have a benefit based on the same wage-earners record. Consequently, even if your ex-spouse has remarried, you may still be eligible for a benefit, and the benefit is not divided among multiple spouses/ex-spouses.

For example

In the case of television personality Johnny Carson, his 1st, 3rd & 4th wives all collected Social Security benefits based on his earning record.  Unfortunately his 2nd wife did not because they weren’t married 10 years.

TIP:   There are 2 kinds of benefits, Social Security benefits and Survivor benefits – and the rules around remarriage are different.

Claiming on an Ex-Spouse’s Record

In general, there are five rules:

  • You had to be married for 10 consecutive years or longer
  • You have reached age 62
  • Your  ex-spouse is already claiming benefits

        OR

You have been divorced for two years or longer and your ex-spouse is eligible for social security retirement or disability benefits (even if He/She is not yet collecting) 

  • The benefit that you are entitled to receive based on your own work, is less than the benefit you would receive based on your ex-spouse’s work record
  • The spouse claiming a benefit on the former ex-spouse’s earning record has not remarried.  (This may vary if the ex-spouse has passed away and we are talking about a “survivor” benefit, see the Social Security website for more information this.) 

As a divorced spouse, your 

  • Spousal benefit will be ½ of your living ex-spouse’s benefit (even if you never worked) or your benefit based on your earning record– whichever is higher
  • Survivor or widow(er) benefit  – If your ex-spouse has passed away and you are eligible for a divorced widow(er) survivor benefit, you may receive the higher of 100% of your divorced ex-spouse’s benefit at your full retirement age or your benefit based on your earning record

Whenever you are eligible and apply for multiple benefits (as in the cases above) you won’t get the cumulative amount of the combined benefits (his/hers & yours), instead you will get whichever one pays the highest amount.  

TIP:  Divorced retirees who are age 62 or older by Jan. 1, 2016 and have a full retirement age (FRA) of 66, or if you were born before January 2,1954 and have already reached your FRA, you may choose to receive the divorced “spousal” benefit and delay receiving your own retirement benefit until a later date,  by filing a “restricted application” for just your ex-spouse’s benefit  from age 66 to 70. This allows your own retirement benefit (based on your record) to continue to grow at 8% a year – that’s 32% benefit increase if you wait until age 70 due to the delayed retirement credits. Then if you earned benefit is higher, you could switch to your own individual benefit at age 70 . This strategy however is no longer available for those born AFTER 1/1/1954.

Remarrying after Divorce

This is where it can get even trickier, depending on whether you remarried before age 60, after age 60, if you were receiving a widow or divorced spousal benefit before remarriage. Are you still married to someone now?  Are both spouse and ex-spouse living or is one deceased?

If you remarried before age 60 and are still married, you are not eligible to claim benefits on your ex-spouse’s record (even as a survivor widow(er) benefit).  If this marriage ends, you may be re-eligible for benefits on your ex-spouse’s earning record. 

However, if you remarry after age 60 you may be able to use a social security claiming strategy based on an ex-spouse if it’s favorable to you under certain circumstances.

For example:

If you were previously divorced, met the other eligibility requirements & the previous spouse passed away  and you now remarry after age 60, you may be entitled to the higher of a divorced widow(er) survivor benefit, a spousal benefit (based on your new spouse’s higher earnings record) or a benefit based on your earning record.

TIP:  Today, with the increase in divorce, there’s an increase in multiple remarriages.  So,  if you have more than one marriage that has lasted 10 years or more and ended in a divorce the earning records of both ex-spouses may need to be evaluated when deciding on a claiming strategy.

Filing

Have no worries, the Social Security Administration (SSA) will NOT notify your ex-spouse that you are receiving benefits based on their record, but you will need to know his/her Social Security number and have a copy of the finalized Divorce Decree. The SSA will look at you as single, married, divorced, or widowed and you may seem to fall into several of these categories which can be very confusing. Remember, you can’t be an ex-wife/husband of a living ex-spouse and a current wife/husband of a living spouse when talking about a spousal benefit. In this case you are a married spouse and can’t choose the better spousal benefits across both the ex-spouse and current spouse while they are both alive.

So, although you may apply for social security online via an application form  or your My Social Security account, or by calling 800-772-1213, it may be most prudent to speak with a financial professional specializing in social security claiming strategies first and then make an appointment to go into your local Social Security office.  

For a more detailed look at rules and scenarios see “Social Security Rules and Strategies for Divorcee Spousal Benefits”. It is also my understanding that the system’s rules and benefits are no different for same-sex marriages and divorces.

The Big Takeaways

  • If you were married more than 10 years, there may be some Social Security benefits available that you were not aware of, regardless of what your divorce decree says
  • If you are married close to 10 years, it may make sense for both of you to consider 
    • waiting until after the 10 years has passed before filing for a divorce
    • or filing for a legal separation in the interim, until the 10 year rule is met so that  the less-monied spouse can be protected financially under these social security benefits after the divorce. This does NOT impact the benefits received by the higher earning spouse
  • Talk with a professionals before making a final claiming decisions

This is not meant to be an exhaustive discussion on the topic, tax, financial planning or law advice; but rather items for consideration so that you may make better decisions with your team of professionals.  

 

By: Michelle Buonincontri, Certified Financial Planner, Certified Divorce Financial Analyst

[email protected]

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.

 

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