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Is Military Deployment a Change in Circumstance Sufficient to Modify Custody?

On this Memorial Day I wanted to take a moment to write about an issue that often presents itself with prospective clients that I meet. The issue being, whether a military deployment itself can be the change in circumstance sufficient enough to warrant the Court modifying legal decision making (custody) terms?

By operation of law under Title 25 of the Arizona Revised Statutes, the “Court shall not consider a parent’s absence caused by deployment or mobilization or the potential for future deployment or mobilization as the sole factor supporting a real, substantial and unanticipated change in circumstances”.

In application, this provision does not restrict the ability of the Court to modify parenting rights and responsibilities on a temporary basis during an absent parent’s deployment or mobilization. For instance, after hearing, brought by motion of a deploying or non-deploying military parent, the Court can modify such rights if:

  1. A military parent who has legal decision making or parenting time have received notice from military leadership that the military parent will deploy or mobilize in the near future.
  2. The deployment or mobilization would have a material effect on the military parent’s ability to exercise parental rights and responsibilities or parent-child contact.

Will my Child be Interviewed During my Family Law Case?

Rule 12, Arizona Rules of Family Law Procedure, (“ARFLP”) and A.R.S. § 25-405 provide valuable input in answering the question of whether a child will be interviewed during an Arizona family court matter.

The Court may interview a child “in chambers” to determine the child’s wishes as to the child’s custodian and as to parenting time. In addition, the Court may use professional personnel to evaluate the minor child and provide feedback to the Court. Such interviews may be conducted at any state of the proceeding and generally will be recorded by either a court reporter or other electronic medium which is retrievable, such as audio. With that said, the Court does have it in its discretion to seal part of or the entire child interview from dissemination to any third party, including both parents and legal counsel. The Court will only seal the interview in such a manner where good cause presents itself in so doing and where it serves the best interests of the minor child. For instance, if the Court has made findings that the parents have historically coached or disciplined the minor child for voicing his / her wishes, then an order sealing the record may be appropriate.

For additional information concerning the further scope and purpose of the aforementioned rules, please contact our experienced Arizona Family Law Attorneys today.

Will I Remain Obligated to Pay a Debt that was Assigned to my Prior Spouse during our Divorce?

This is one of those questions that I’m asked all the time!  The answer appears obvious, but it is anything but that. In your property settlement agreement or decree of dissolution of marriage or legal separation, the court will assign responsibility for certain community obligations to one spouse or the other. These allocations are done equitably by the Court, which generally means equally or 50/50.

What divorced parties need to realize and often fail to understand however is that the Court order allocating responsibility for repayment of community obligations is binding ONLY on the spouses and does not generally relieve either spouse from their responsibility for such community debts, as such debts are considered a separate contract between the spouses and their creditors (such as banks, credit unions, credit card issuers, utility companies, finance companies, medical providers, retailer, etc.).

Since the aforementioned creditors are not parties to the spouse’s particular court case, they are not bound by court orders or agreements for repayment of such obligations.

As illustration – a divorcing couple has a community credit card debt of say $5,000.00. It is ordered at the time of dissolution that this debt will be paid exclusively by the Husband and he will be held to indemnify and hold the Wife harmless from the same. Several months following the parties’ divorce Husband has made no payments toward satisfaction of the $5,000.00 debt and the credit card company comes after Wife for repayment of the obligation. Wife may think that this can’t happen because the Court order states that repayment of this obligation is the responsibility of Husband. However, for reasons outlined above this belief is untrue. Wife may very well get stuck paying down this obligation as not to negatively affect her credit.

So what is Wife’s recourse? Since Husband through the parties’ decree of dissolution indemnified and held Wife harmless from repayment of the obligation, Wife can take Husband back to the family court and seek enforcement of the Court’s order and/or contempt proceedings against Husband for his non-payment and/or disregard of the family court orders.

Motions for New Trial – Arizona Family Law Practice

I often meet with litigants that are very disappointed of the outcome of a hearing and want a second “bite” of the apple. The one constant is nearly every time this occurs, the disappointed person represented themselves and now seek services of an experienced attorney to help undo his/her wrongs. The Arizona Rules of Family Law Procedure, (“ARFLP”) allow for a litigant to motion the court for a new trial under certain limited circumstances.

A ruling of the family Court may be vacated and a new trial granted for any of the following reasons:

1. irregularity in the proceedings of the court or a party, or abuse of discretion, whereby the requesting party was deprived of a fair trial;

2. misconduct of a party;

3. accident or surprise which could not have been prevented by ordinary prudence;

4. material evidence, newly discovered, which with reasonable diligence could not have been discovered and produced at the time of the hearing;

5. error in the admission or rejection of evidence or other errors of law occurring at the hearing or during the progress of the action; and

6. the the ruling is not justified by the  evidence or is contrary to law.

Although the aforementioned justifications for a new trial have been provided, application of each is very specific and in the opinion of this writer requires competent legal counsel to determine viability.

In addition, there is a very limited time period in which a request for new trial must be brought before the Court.

For more assistance on the issues outlined herein or with any Arizona family court matter, contact our experienced attorneys today.

Temporary Orders

Phoenix Divorce Lawyer – A party seeking temporary orders in a family court proceeding shall do so by filing a separate and verified motion. The temporary orders motion shall set forth the legal and jurisdictional basis for the motion and the specific relief sought. The motion shall be filed after or concurrently with the initial petition, and is generally filed for to determine the following issues on a temporary basis: 1) legal decision making (custody); 2) parenting time; 3) child support; 4) spousal maintenance; 5) property or debt allocation; and 6) attorneys’ fees.

After receiving a request for temporary orders, the court will schedule either a pretrial conference, resolution management conference, or an evidentiary hearing not later than 30 days after receiving the motion. In the event the Court schedules a pretrial conference or resolution management conference initially and the issues are not resolved at the time of that/those hearings, the Court will then schedule an evidentiary hearing not later than 30 days thereafter to address and/or rule on the issues outlined in the temporary orders motion. Temporary orders motions may also be filed on an emergency basis under very specific circumstances.

There are several other requirements which must be met when filing for temporary orders. For this reason, it is strongly suggested that prior to seeking temporary relief from the Court that you consult with an experienced Arizona Family Attorney. For more information on this or any other Arizona Family Law issue, contact our experienced family lawyer today.

Relocation of a Minor Child – Rights of Each Parent

Arizona’s statute concerning relocation of a minor child can be found in A.R.S. 25-408. Pursuant to this statute:

If by written agreement or court order both parents are entitled to joint legal decision-making or unsupervised parenting time and both parents reside in the state, at least sixty days’ advance written notice shall be provided to the other parent before a parent may do either of the following:

1. Relocate the child outside the state.

2. Relocate the child more than one hundred miles within the state

The notice required by statute shall be made by certified mail, return receipt requested, or pursuant to the Arizona rules of family law procedure. The court shall sanction a parent who, without good cause, does not comply with the notification requirements of this subsection. The court may impose a sanction that will affect legal decision-making or parenting time only in accordance with the child’s best interests.

Within thirty days after notice is made the nonmoving parent may petition the court to prevent relocation of the child. After expiration of this time any petition or other application to prevent relocation of the child may be granted only on a showing of good cause. The statute does not prohibit a parent who is seeking to relocate a child from petitioning the court for a hearing, on notice to the other parent, to determine the appropriateness of a relocation that may adversely affect the other parent’s legal decision-making or parenting time rights.

In determining the child’s best interests the court shall consider all relevant factors including:

1. The factors prescribed under section 25-403.

2. Whether the relocation is being made or opposed in good faith and not to interfere with or to frustrate the relationship between the child and the other parent or the other parent’s right of access to the child.

3. The prospective advantage of the move for improving the general quality of life for the custodial parent or for the child.

4. The likelihood that the parent with whom the child will reside after the relocation will comply with parenting time orders.

5. Whether the relocation will allow a realistic opportunity for parenting time with each parent.

6. The extent to which moving or not moving will affect the emotional, physical or developmental needs of the child.

7. The motives of the parents and the validity of the reasons given for moving or opposing the move including the extent to which either parent may intend to gain a financial advantage regarding continuing child support obligations.

8. The potential effect of relocation on the child’s stability.

There are other variations of the statute which may apply to under different sets of circumstances. That is why it is strongly advised to meet with an experienced Arizona Family Lawyer prior to relocating or seeking permission of the Court to do so.

Binding Agreements – Rule 69 Arizona Rules of Family Law Procedure

In Arizona domestic relations cases, Rule 69 of the Arizona Rules of Family Law Procedure, (“ARFLP”) affords litigants the opportunity to enter into binding and otherwise valid agreements if:

1. the agreement is in writing, or

2. the terms of the agreement are set forth on the record before a judge, commissioner, judge pro tempore, court reporter, or other person authorized by local rule or Administrative Order to accept such agreements, or

 

3. the terms of the agreement are set forth on any audio recording device before a mediator or settlement conference officer appointed by the court***.

In practical application it is important for litigants to understand the nature and effect of entering into a Rule 69 agreement before doing so. I often have prospective client’s come to me seeking to get out from a Rule 69 agreement that they previously entered. From this, I find it important to note that any agreement entered pursuant to Rule 69 shall be presumed valid and binding, and it shall be the burden of the party challenging the validity of the agreement to prove any defect in the agreement. This basic understanding of the operation of the Rule is important for litigants to understand, because pursuant to A.R.S. 25-324, the court may award a party the cost and expenses of maintaining or defending a proceeding to challenge the validity of an agreement otherwise made in accordance with Rule 69.

For more information on this or any other Arizona Family Court matter, contact the experienced attorney’s at Ariano & Reppucci, PLLC today.

Presence of Minor Children During Family Law Proceedings

The general rule is simple; do not bring minor children with you to your Court hearing unless otherwise instructed by the Court. Specifically, the rule concerning a minor child’s presence at or during Court hearings states:

“The court may, in its discretion, exclude minor children from any proceeding if the presence of a minor child may not be in the child’s best interests or may be disruptive or distracting to the proceeding. The presence of a minor child affected by a family law proceeding is generally not in the child’s best interest and such child shall not be present during any proceeding involving said child, or the parents or said child, without prior permission of the court.”

From experience, the above cited rule is consistent with the current custom and practice of the family law court, which discourages the attendance of minor children at court proceedings in which they are involved. As an alternative to bringing a child to court in hopes of securing his/her testimony, the court can still assure that a child’s “voice” is heard (particularly in contested custody cases) by appointing a child’s attorney, best interest attorney or court appointed advisor, by having the child interviewed by a mental health provider or conciliation services, or by interviewing the child in camera by the judge.

For more information on this or any other Arizona family law matter, contact our experienced attorneys today!

Best Interests Attorney

In Arizona, a Court may appoint a best interest attorney for the benefit of a minor child subject to a domestic relations actions for a number of reasons. In particular, a best interest attorney may be appointed when there is an allegation of abuse or neglect; the parents are persistently in significant conflict with one another; there is a history of substance abuse by either parent, or family violence; there are serious concerns about the mental health or behavior of either parent; the child is an infant or toddler; the child has special needs; or any other reason deemed appropriate by the Court.

If a best interest attorney is appointed in your case, that person will be permitted to participate in the conduct of the litigation to the same extent as the parties. A best interest attorney may also submit a report to the Court and/or testify concerning his/her findings at the time of any hearing scheduled by the Court.

It is important to understand that a best interest attorney works not for you or the other party, but works with and for the best interests of the minor child. To this point, a best interest attorney can have a substantial impact on the outcome of any case. For this reason it is strongly suggested that when a best interest attorney is appointed by the Court that a parent seek immediate consultation with an experienced attorney in order to better to protect their own interests in the proceeding.

The attorneys at Ariano & Reppucci, PLLC are well versed in handling matters in which a best interest attorney has been appointed. For more information on this subject and/or any other Arizona family law matter, please contact our experienced attorneys today!

Modifications of Legal Decision Making or Parenting Time

In Arizona, a party to a family court case, absent emergent circumstances, is precluded from requesting a modification to either legal decision making or parenting time earlier than one year after a legal decision making or parenting time order is entered by the Court. With that said, at anytime after entry of such orders, a parent may request a modification through the Court or either legal decision making or parenting time on the basis of qualifying domestic violence. Moreover, six months after such orders a parent can request a modification of either legal decision making or parenting time based upon allegations that the other parent has failed to substantially comply with provisions of the order.<h/6>

There are numerous procedural requirements that must be met in addition to following the rules for modifications as outlined above. For this reason it is strongly suggested that a party seeking modification of either legal decision making or parenting time meet with an experienced Phoenix Family Lawyer prior to filing for such relief through the Court. This recommendation is made in part because Arizona statutes indicate that the Court SHALL assess attorney fees and costs against a parent seeking modification through the Court if it is found that such request is vexatious and constitutes harassment.