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

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

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

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

 

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

 

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

 

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

 

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

 

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

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

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

By Logan Matura

 

At the Law Firm of Gary J. Frank P.C., our Arizona Family Law Attorneys Gary Frank, Hanna Amar, and Logan Matura are strong litigators and compassionate counselors. Gary Frank is a Phoenix Family Law Attorney with over 30 years of experience as a litigator and mediator. He has also acted in the capacity of a Judge Pro Tempore in the Maricopa County Superior Court, and served on the Governor’s Child Abuse Prevention Task Force. Law firm Partner, Hanna Amar is a highly-skilled Arizona Family Law Attorney with a passion for Family Law and children’s issues. She has extensive courtroom experience, and is also a certified mediator. Hanna has also acted as the President of the Young Lawyer’s Division of the Maricopa County Bar Association. Associate Attorney Logan Matura is an Arizona Family Law Attorney who received her Juris Doctor degree from New York Law School in Manhattan, NY. While in law school, she served as an intern for a Family Court judge in the Bronx, NY, and was a member of the Family Attorneys Mobilizing club. Our firm handles Family Law cases in the areas of divorce, custody (now called “Legal Decision-Making and Parenting Time), relocation (move-away), division of property, spousal and child support, modification actions, enforcement actions, grandparent and step-parent and non-parent rights, as well as other matters pertaining to families and children. If you are in need of a consultation, call us today at 602-383-3610; or you can contact us by email through our website at www.garyfranklaw.com.   We look forward to hearing from you.

 

ARIZONA’S PRESUMPTION OF EQUAL PARENTING TIME

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.

 

THE AMAZING POWER OF EMPATHY

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

 

 

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

 

NEW AZ SUPREME COURT CASE RESTORES FAIRNESS TO FAMILY LAW

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

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

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

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

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

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

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

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

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

 

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

 

 

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

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.

 

 

 

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

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

Among the changes to the law were the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

 

PARENTAL ALIENATION – IS IT REAL? DOES IT REALLY MATTER?

There has long been a debate among experts over whether Parental Alienation is really a “syndrome.” To which I respond: Does it matter? In our Family Law practice, we see Parental Alienation all the time. It occurs frequently in divorce and custody (now called Legal Decision-Making and Parenting Time) cases. Whenever a parent talks badly about the other parent to the children, or in front of the children, that’s an act of parental alienation. Why? Because children look up to their parents. They respect them They believe them. And if a parent is trashing the other parent within hearing distance of the children – or, worse yet, to the children – then there is a pretty good chance that it will affect how the children view the parent who is being “trashed.” Some parents do this incessantly. Others do it sporadically. Some do it intentionally. Others do it without thinking of the consequences. But either way, it can impact how the children view their other parent, and can alienate the children from that parent. More importantly, it can negatively affect the children, and even cause long-lasting emotional harm. So, does it matter whether Parental Alienation is a psychological condition? A “syndrome”? That’s missing the point. It’s a bad thing. It breaks down the relationship between a child and a parent whom he or she loves (or should be allowed to love). And, in the long run, it hurts the child.

 

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

The information contained in this blog post is provided for informational purposes only. It is not intended to be, nor should it be construed, as legal advice in your particular case. You should consult with an attorney for advice regarding your individual situation. Further, reading this blog post does not create an attorney-client relationship. We invite you to contact us if you are in need of legal advice or guidance. To schedule a personal consultation, you can call us at 602-383-3610 or reach us through our website at garyfranklaw.com. We’d be happy to talk to you.

SAY GOODBYE TO CUSTODY

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.

 


WHY FEAR & ANGER ARE YOUR WORST ENEMY IN FAMILY COURT

In all our years of practicing Family Law, we have found that the predominant and most destructive emotion among parties to a divorce or custody case is FEAR.
Fear is a primal human emotion.  It comes into play when we feel threatened – and when a marriage is crumbling and people are considering divorce, there is plenty to feel threatened about:  “How am I going to survive without my spouse’s income?  Do I have to give her half of my money and property?”  “Will he be able to take proper care of the children when I am no longer there to supervise?”  “Who gets to stay in the house?”  “What will happen when my spousal support ends?” . . .
It’s no wonder why people are fearful – when a marriage is unraveling, both the husband and wife face a scary and uncertain future, and so do the children.  Add to that the adversarial nature of a court proceeding, and you have a very combustible mix.  All it takes is one little spark to ignite a raging fire.
When people are feeling out of control and not communicating (as is the case with most divorcing couples), the fear that is building up inside them can easily morph into another human emotion – ANGER – and that anger can manifest itself in any number of ways:  Discussions can deteriorate into shouting matches; a spouse can “shut down” and become unwilling to talk; a person can become obstinate and unreasonable; or one spouse may seek to hurt or punish the other.  Anger can lead to territorial battles over money or property, or even time with the children.
We are all human, and these responses to fear are certainly understandable, but they are unhealthy and can lead to contentiousness and long-term problems.  I’ve seen it a thousand times:  An angry spouse runs out and gets an attorney to use as a “hired-gun,” with the goal of inflicting maximum damage. — The other spouse retaliates by bringing in their own “hired-gun.” — And before they know it, the parties are waging an all-out litigation war, with money spilling to the ground like water from a barrel shot full of holes.  In a war like that, nobody wins.  Often, given the parties’ seething anger and lack of communication, the stage is set for a series of future battles, where the former husband and wife return to court over-and-over again, during the course of many years, to re-litigate issues involving custody of children, or parenting time, or support.  Hard-earned money that could have been used for retirement, or the kids’ college education, now goes to pay attorneys in an endless war of attrition.
A divorce may include very complicated issues, such as determining legal decision-making authority; parenting time; child support; spousal maintenance (alimony); division of property and debts; appraisal of real estate; or valuation of businesses, stock options, and retirement plans – just to name a few.  Working through these types of issues takes patience and emotional intelligence.  It takes a willingness to put aside fear and anger and address the needs of the parties and the children in a calm, business-like manner.

As we see it, the job of the attorneys in a divorce case is to help the parties carefully untangle the twisted web of issues involving custody, support, property division, and finances without ripping the fabric of “family” (the children will still have two parents, even after the divorce is finalized).  Where children are involved, the lawyers’ primary responsibility is to help the parents build a bridge so that when the divorce is over they will be able to communicate effectively for the benefit of the children.  If the divorce does not involve children, then our job is to find a way to divide assets and debts in a manner that leaves both parties as financially intact as possible.  Obviously, the lawyers cannot accomplish these goals without a buy-in from both parties.  If their actions are ruled by fear and anger, then they will be unable to make responsible decisions, and settlement discussions may be out of the question.  In representing clients over the years, I have seen instances where a party or his attorney elects to take a “slash-and-burn” approach.  When that happens, my job is to aggressively protect and defend my client’s interests.  That means getting tough.  However, even in the midst of the most hotly contested legal dispute, it is in everyone’s best interest to keep the door open to reasonable settlement negotiations – because, in the end, it is the client’s life, and the client’s future, that are at stake – and, in too many cases, when the battle is over and decisions were dictated by fear and anger, the only winners are the lawyers.  But that doesn’t have to happen.  Take charge of your emotions.  Keep your cool.  And approach divorce as if it were a business negotiation.  If you can do that, then you are in control.

 

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

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