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How to Choose a Family Law Attorney

April 18, 2012 By Maricopa County Court Leave a Comment

Speaking with a family law attorney is a tough decision to make. But even tougher is knowing whom to hire when legal advice is needed. Many people feel desperate and hire the first family law attorney they find in the Yellow Pages. While some people get lucky doing it like this, it is more likely that individuals become frustrated and extremely dissatisfied with the final outcome. This dissatisfaction and frustration can be completely avoided by knowing how to choose the right family law attorney to help.

The relationship between the attorney and the client is a personal one as most family law cases are very delicate and sensitive in nature. These cases deal with marriages and/or children, so it is extremely personal. If an individual is not comfortable speaking about these highly personal matters with an attorney, look for a new one. It is okay to be selective. The attorney needs to listen and provide a feeling of confidence that they are competent and able to properly represent.

When an individual needs to have a surgical procedure done, they go to a specialist, not a general practitioner. The same is true about attorneys. While any attorney may state that they are competent enough to handle a divorce or child custody case, it is essential to locate an attorney that does nothing but family law. This ensures they know the “ins and outs” of the law in this field and are up to date on all new laws and regulations. When selecting an attorney, individuals should ask the attorney how many cases they handled similar to their own, if they are a member of the family law section of the state bar association, and if they have practiced family law in a specific county.

The right family attorney will make the time for the client. If they seem too busy to provide 100 percent of their attention to the case, look for a new attorney. To find out about their commitment to the case, ask them questions such as how many cases they are actively involved with right now, their policy regarding returning emails and phone calls, and how often they communicate with clients.

Many people think they need a shark in the courtroom when it comes to family law cases, but often times the peacemaker is the best family law attorney. Individuals should want an attorney that will settle the conflict without it having to see a courtroom. People should think about it like this, the longer the fight goes on, the more money the attorney will make. A shark tends to create further conflict, making it longer to settle on an agreement. Do not underrate civility.

The last item to think about when choosing the right attorney is their fee. While this may seem like an uncomfortable topic, it is vital to discuss fees. The fee agreement needs to be in writing and provide details as to the representation the attorney will provide. Ask questions such as what is the hourly rate, how often are invoices received, what billable rates are for others that may work on the case, and how to keep fees to a minimum.

Our experienced Orlando Family Law Attorney can help to guide you through the process of separation, divorce, property settlement, alimony, child custody and child support, visitation, adoption, dependency and domestic abuse – injunctions. Our Orlando Family Law Attorneys offer the aggressive, compassionate and assertive advocacy you need to accomplish any legal objective. For more information, please go to [http://www.orlandofamilylawattorney.net]

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Filed Under: Family Court Tagged With: Child Custody, Divorce, Family Court, family law attorney, maricopa county family court

Divorce and the Basic Issues of Child Custody

April 3, 2012 By Maricopa County Court Leave a Comment

By Jess Garson -

Divorce is considered one of the most traumatic experiences a person can face in their life. When the divorcing couple are parents of minor children, the issue of child custody takes centre stage. It is an issue that cannot be put aside until other issues are dealt with. The problem is that on top of the pain of the divorce itself, most parents do not have a clue about the complexities of child custody. They don’t know their rights, their child’s rights or what has to be done to protect themselves and their children. This article will highlight some important issues that divorcing parents need to consider.

What Is Child Custody?

In a nutshell, child custody is the term used to describe the guardianship and living arrangements for the minor children of divorcing parents. The children have to live somewhere. They have to be cared for by someone. The big question for divorcing parents is…

Who Gets Custody of the Child?

No. Contrary to popular belief, the mother does not automatically get custody of the kids. No assumptions can be made about child custody. Especially if the final decision is made by a judge. The underlying consideration for all custody matters for all those involved in the decision, including a judge (if necessary), is who and what will serve the best interests of the child. In other words, who will the child be better off with. So, there are many things that must be taken into consideration when determining who gets custody of the children.

How is Child Custody Determined?

Custody can be settled by the parents with the help of their lawyers. In this case, an out-of-court settlement is reached under the laws governing such a collaboration. This route is actually less stressful for all involved including the children. It is cheaper than going to court. It’s faster. It’s also more likely to be adhered to by both parents. However, this ideal situation is only possible if the parents can be very reasonable with each other.

If the parents can’t settle the custody issues themselves, their case will be presented in family court where a judge will make the decisions for them. In a custody battle, one or both parents may be unhappy with the decision the judge makes which causes bad feelings and invites petty and even bad behaviour. A bitter divorce can easily extend into a long, gut-wrenching, expensive custody battle.

What Does A Parent Need To Do?

If the parents are in the divorce process, they probably have already engaged lawyers. Their lawyers will be able to guide them with their child custody concerns. If they have not yet retained lawyers, they would be well advised to do some research with regard to divorce and child custody. A lot of information can be found on the web in general, attorney websites and government websites.

At the very least, if a court case is looming, both parents should be documenting everything they can. Things like behaviour in front of the children, treatment of the children, finances and anything else they think will give them an advantage in court. Parents should go to court informed and prepared if they want a favourable outcome for themselves.

Other Things To Consider.

In a court case, since the best interest of the child is of paramount importance, both parents will be under a microscope. Their habits and behaviour will be scrutinized by the court. Most parents dig up dirt on each other, too. Drug and alcohol use, smoking, neglect, abuse, criminal behaviour and parental friendships will all be taken into account.

Divorce and child custody go hand in hand for parents of minor children who are ending their marriage. Ideally, parents should put the well-being of their children above all else and work out a child custody arrangement amicably. Otherwise, the courts will decide the fate of the children and the parents will be at the mercy of the court.

Get an advantage in your child custody case by getting informed at http://www.custodyconcerns.com. For expert advice on all aspects of child custody check out the publications at the child custody library.

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Child Custody State Laws – What You Should Know

March 9, 2012 By Maricopa County Court Leave a Comment

By Malcolm Louis Tabuyo -

Divorce can be a messy process, hurt feelings getting brought up, valuable possessions being argued over, and children caught in the middle. In the United States, child custody is taken seriously. The best interests of the child must always be kept at heart and put above all else. Child custody State laws in United States ensure that the correct parent is chosen to care and raise the child and protect custodial and non-custodial parents. Above all, the care and protection of the child is put first, and United States laws are strictly enforced to make sure every child is properly placed.

Arrangement for custody can be decided by the parents or not, though most reach a mutual consensus after litigation. Whether it is for sole custody or joint legal custody, the decision reached must be approved by the court before any finalization. Sole custody gives a parent the right to make decisions on behalf of the child; joint legal custody splits this right between both parents. Issues such as schooling, religion, extra-curricular activities, medical treatment and councilors are within rights of the parent with custody to choose for the child.

There are numerous factors that go into determining custody of a child. If a parent works long hours or if there are violence charges against the parents are what judges will take into consideration when choosing a suitable custodial parent. The chosen parent has an obligation to ensure the child’s health, education, and support, failure to uphold any of these are grounds to remove the child from custody, though non-custodial parents are also partially responsible for the child’s care as well, paying a percentage of their income in child support. A judge can remove a child from one parent’s care and place them in the custody of the other depending on whether any of the obligations are fulfilled or not.

Child custody state laws may also come into play with couples that are still married, but choose to live separate, possibly just before a divorce. The laws and obligations are the same, though several more factors are taken into consideration. Parents may share custody of the child, but in separate residences the quality of the home is checked, and the mental and physical health of both parents is evaluated as well.

Child custody State laws in United States is best summarized in the phrase, “In the best interests of the child” and there are no corners cut when it comes to a child’s welfare.

For more info on Child Custody State Laws visit

http://childcustodystatelaws.com

Malcolm Louis T.
Author and Webmaster of
http://childcustodystatelaws.com

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Arizona Marital Property Laws: Designation of Assets in Divorce – Community and Separate Property

March 8, 2012 By Maricopa County Court Leave a Comment

By Scott D Stewart

In any divorce proceeding, the issue of how to divide assets and debts must be resolved. This article provides a framework for understanding Arizona marital property law and determining whether an asset is separate property or community property.

Community Property and Separate Property.

Community property is marital property.It includes all assets accumulated during the marriage, regardless of whether the asset is in one spouse’s name or the other. A.R.S. 25-211. Although assets acquired during the marriage will likely be community property and subject to equal division between the spouses, there are exceptions: the asset was owned prior to the marriage, or was acquired by gift, or acquired by inheritance during the marriage. A.R.S. 25-213.

An asset that is separate property is not a part of the marital estate and will not be subject to division in a divorce. If an asset was acquired before the marriage, it may remain the separate property of one spouse at the time of dissolution. This is not a hard and fast rule. The characterization of property depends in great part on how the asset was used during the marriage, usage can change the asset’s character from separate to community property. Furthermore, a portion of the asset’s value may remain separate property, while a portion becomes marital property. All of this depends on the facts of each individual case.

The parties are always free to agree on the designation of an asset as the separate property of one spouse or the community property of both spouses-this is a part of the negotiation of a divorce.

Acquisition Determines the Character of Real Property.

An asset is characterized as either separate property or community property at the time of purchase or acquisition. Separate property, followed by marriage, is still separate property. Generally, when community money is used to pay a mortgage or used to make improvements to the separate real property of one spouse, however, the non-owning spouse is entitled to reimbursement. That is, reimbursement for the community money spent on the other spouse’s separate property.

Here’s an example: Husband owned a home prior to the marriage, his separate property. During the marriage, marital funds were used to pay down his mortgage thereby reducing the principal owed. The reduction in principal may be a community asset subject to division. If marital funds were used to improve Husband’s property which resulted in an increased property value, then that increase in value is a community asset, too.

Transmutation of Separate Property into Community Property.

Transmutation of separate property means the ownership has changed — what started as separate property was converted into marital property. The methods of transmutation are straightforward: transmutation by agreement between the spouses, transmutation by gift from the owning spouse to the community, or transmutation by commingling the separate property with marital property so much so that it loses its prior separate character.

Transmutation by Gifting Real Property – Creating Joint Tenancies.

When one spouse conveys his or her separate real property interest to both spouses as joint tenants, the law presumes it was a gift to the community. This legal presumption can be rebutted, but only with clear and convincing evidence. When a party owns a home prior to the marriage and subsequently conveys title in joint tenancy to both spouses, he or she has gifted the value of the home to the marriage — it becomes a community asset.

Donative intent is required for a valid gift to the community.

The only way to defeat this legal presumption that a joint tenancy conveyance is a gift to the community is to convince the court, by a burden of clear and convincing evidence, that no gift to the community was ever intended – that is, there was no donative intent.

Case #1. Sloane v. Sloane — Yes donative intent.

If the alleged transmutation of property occurs by gift, then the usual rules as to sufficiency of evidence apply. One of the first requirements of a valid gift is donative intent. In one case, the husband asserted that, although he transferred his property (acquired before the marriage) from his name to jointly titled property with his wife (during the marriage), the property should not be considered community property because he lacked donative intent. He conveyed the property into joint tenancy not to gift it to the community, but as a testamentary device to avoid a future probate proceeding. The court found husband’s argument insufficient and held the property had been transmuted from separate property into community property. The point from this case? There is a presumption created by a joint tenancy that cannot be overcome by the hidden intentions of one spouse. The legal presumption that the joint tenancy creates a gift to the community can only be overcome by evidence proving a common understanding or agreement between both spouses that the character of the property was to be something other than a joint tenancy.

Case #2. Nationwide v. Massabni — No donative intent.

In another case, there was sufficient evidence to show husband never intended a gift of his separate property to the community. The real property deed was in husband’s name only, as his separate property. To avoid garnishment of his separate property by a creditor, he claimed it was really community property. Because only husband was liable on the debt, community property was out-of-reach for this creditor. Husband’s evidence in support of his donative intent to gift his separate real property to the community included a promissory note payable to both spouses over the subject property. The court rejected husband’s claim of community property because, in part, his wife wasn’t added to the promissory note until after his creditor had filed the lawsuit against him. Consequently, the court ruled that there was no donative intent, no gift to the community, and the asset remained husband’s separate property.

Joint Tenancy and a Co-Tenant’s Right to Reimbursement.

In a dissolution of marriage, the court may consider the expenditure of separate funds for the purpose of fulfilling existing joint obligations. When property is held in joint tenancy, the law of joint tenancy permits reimbursement to the contributing co-tenant. The court cannot, however, order a substantially unequal division of property held in joint tenancy for the purpose of reimbursing the spouse who used separate funds to acquire that property. A substantially unequal division of property held in joint tenancy can only be agreed upon by the parties.

Here’s a case in point. In Whitmore v. Mitchell the court recognized that spending separate monies after the joint tenancy was created may entitle the contributing spouse to reimbursement. Absent an agreement to the contrary, a court may not order a substantially unequal division of jointly held property solely to reimburse one of the spouses for spending his or her separate funds to acquire the property. This court made an important distinction on the reimbursement of separate funds. First, a joint tenant has a right to reimbursement for separate funds used to improve the jointly held property. When property is acquired with separate funds after the marriage and put in joint tenancy, there is no reimbursement for the separate funds used to buy the property-that was a gift to the community. If after the property is purchased the spouses hold in joint tenancy, then the contributing co-tenant may be reimbursed for separate monies used to benefit the other co-tenant. “[T]here can only be a right to reimbursement when a joint obligation exists. The obligation does not come into existence until the property is purchased [and placed in joint tenancy].” Second, if the asset is community property and separate funds were used to make improvements to it, then the contributing spouse has no right to reimbursement.

(There was one rather extreme case when the ArizonaSupreme Court allowed a substantially unequal division of joint tenancy property. The marriage was of extremely short duration, in only two weeks the parties had physically separated and, in another two weeks, had filed for an annulment. Toth v. Toth)

The same rule applies to community property — the court cannot order a substantially unequal division of community property for the purpose of reimbursing the spouse who used separate funds to acquire the asset. There is no reimbursement for subsequent expenditures on community property in a divorce either, unless, once again, there is an agreement to reimburse between the parties.

Scott David Stewart is an attorney practicing family law in greater Phoenix, Arizona. He is AV Rated by Martindale Hubbell, has a perfect AVVO Score of 10.0/superb, and is a member of the State Bar of Arizona, American Bar Association-Family law Section, and Maricopa County Bar Association-Family Law Section. Prior to forming the Law Offices of Scott David Stewart, he worked as Deputy County Attorney for the Maricopa County Attorney’s Office where he honed his trial skills and developed strategies for success that he continues to use and implement in his law firm today. His experience as prosecutor opened his eyes to the need for passionate legal representation for children during divorce proceedings. Children’s voices and needs are often relegated behind the desires of their parents. Stewart’s number one goal is to ensure that children are the focal point of any dispute between parents.

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Overview of Spousal Maintenance Awards in Divorce and Legal Separation

January 12, 2012 By Maricopa County Court Leave a Comment

By Scott D Stewart -

In a divorce or legal separation, spousal maintenance may be ordered by the court to provide important financial support for one party or the other. Maintenance is paid by one spouse (or former spouse) to the other spouse (or former spouse). Some states refer to such support as alimony, others as spousal support. In any case, the purpose and result is the same, as we’ll discuss in this article.

Historical Basis for Alimony — Times Have Changed

There was a time when traditional marriages were entered into with the understanding and agreement that only death could terminate the bond. A divorce was only possible when there was evidence of marital misconduct, or fault. Once fault was established, the court looked to punish the party responsible for destroying the marriage.

Need for Alimony. Alimony was a solution to a very real economic problem. A divorced woman’s chances of finding work sufficient to support herself, even marginally so, were not promising. Knowing this, the courts were unwilling to let a husband impoverish his wife if he was guilty of marital misconduct. Receiving alimony sustained the wife who had kept her marriage vows, and paying alimony punished the husband who had not.

Punishing the Wife — No Alimony. A wife who caused the marital breakdown often found herself in immediate, serious financial trouble. Alimony was not generally available to her. The court reasoned that her post-divorce financial woes were the direct consequence of her guilty acts, and the punishment was deemed appropriate.

Punishing the Husband — Pay Alimony. As the family wage-earner, when the husband caused the marital breakdown the court granted the divorce and ordered him to continue supporting his ex-wife — support in the form of alimony. The guilty husband could not escape his obligation to support his wife, even after the divorce. The support was paid weekly or monthly, and could keep the ex-wife in the standard of living to which she had become accustomed during the marriage.

If the parties were unhappily married and both were without fault, then there were no grounds for divorce. Some couples colluded to achieve their desired result — ending a marriage they both wanted out of. When both husband and wife were at fault, the court was still unwilling to dissolve the marriage as they deserved each other and, consequently, were stuck in the marriage.

Uniform Marriage and Divorce Act.

By the middle of the 20th Century, sensibilities about the traditional marriage had changed significantly. Wives increasingly became wage-earners alongside their husbands, and the stigma of divorce was fading. In a sweeping legislative reform, Arizona adopted the Uniform Marriage and Divorce Act (UMDA), as did Colorado, Illinois, Kentucky, Minnesota, Missouri, Montana, and Washington.

The UMDA (1970) allowed for the irretrievable breakdown of a marriage, which could occur without any fault. Today, our Arizona courts cannot consider acts of marital misconduct in deciding whether to award spousal maintenance.

Eligibility for Spousal Maintenance — How It Works Today

In general, when determining the appropriateness of a maintenance award the court must conduct a two-part analysis.

First, A.R.S. � 25-319(A):

As a threshold question, a spouse must establish eligibility for alimony. In this first step, be prepared to answer questions like the following:

What property does the spouse have? Is the spouse already self-sufficient? Does the spouse need to stay home to care for a child? Could this spouse earn enough money to be reasonably self-sufficient? Did the marriage last many years, maybe a decade? Was the couple only married for a short time, maybe a year or two? Is the spouse at an age that would make self-sufficiency through employment impossible?

Second, A.R.S. � 25-319(B):

Second, the court considers all relevant factors in the family law case. Although the court has broad discretion, the 13factors presented in the statute provide a framework for the judge’s analysis. Here are some questions that should be asked, and answered, in this second step:

1. Standard of Living…

Did the parties live well? Were they affluent? Did they maintain a high standard of living? Did they live modestly? Did they get by with limited resources?

2. Marriage Duration…

How many years were they married to each other? Did the couple invest years in their marriage?

3. Age, Employment, Earning Ability of Supported Spouse…

Did the spouse seeking support quit working outside the home to raise their children? What jobs did that spouse have in the past? How much could he or she reasonably earn? What education does that spouse have? Would training or an education improve that spouse’s employment options?

4. Supporting Spouse’s Financial Ability…

How much does the supporting spouse earn? Can the supporting spouse take care of his or her own reasonable needs, as well as provide support for the other spouse?

5. Comparative Financial Resources and Earning Ability of Both Spouses…

Will one spouse substantially out-earn the other under most circumstances? Does one spouse’s property interests greatly exceed the other’s? Is there a significant financial imbalance between the spouses?

6. Contributions from Supported Spouse…

Did one spouse maintain the household and care for the children, freeing the other spouse to concentrate his or her efforts on career employment?

7. Extent Supported Spouse’s Lost Career Opportunities…

Did one spouse set aside his or her career, education, or employment goals so the other spouse could get ahead?

8. Ability of Both Spouses to Contribute to Children’s Educational Costs…

Will each spouse have sufficient funds to help with the children’s educational costs? Will a spouse only be able to help with the children’s educational expenses if he or she receives help in the form of spousal support?

9. Financial Resources of Supported Spouse…

Does the spouse have sufficient property to take care of all his or her needs without financial help? What makes up that spouse’s community assets?

10. Time Needed for Training or Educational Program…

Is it possible for the spouse seeking maintenance to get vocational, college, or university training to improve overall employability? With an education, will that spouse be able to build a sustainable career? How much money would be required to get the necessary education or training? How long will it take to get through that training or educational program?

11. Excessive or Abnormal Expenditures and Concealment…

Did the spouse hide property and assets or commit other destructive or wasteful acts?

12. Health Care Insurance Costs…

What will be the cost of health care insurance coverage for the spouse seeking support after the divorce?

13. Damages and Judgments from Criminal Conduct…

Was there a conviction of domestic violence committed against the other spouse or their child? Were there any other convictions in which the other spouse or child was a victim?

Maricopa County Spousal Maintenance Guidelines.

In an attempt to improve predictability and consistency in awards, the Maricopa Spousal Maintenance Guidelines were developed. The guidelines provide a formula from which a monthly support amount and support duration can be calculated with greater certainty. The formula allows for predictability and uniformity from one case to the next.

Guidelines Are Discretionary. As useful as Maricopa’s guidelines are, their application is purely discretionary with the court. There is no mandate, or requirement, that a judge use any guidelines at all in his or her maintenance analysis. In the case of Ramsay v. Ramsay, 224 Ariz.467, 232 P3d 1249 (Ariz.App. 2010), the Court of Appeals stated once again that:

“There are no legally authoritative ‘guidelines’ governing spousal maintenance in MaricopaCountyor any other Arizonacounty. A.R.S. � 25-319(B) vests the trial court with broad discretion to determine the amount and duration of spousal maintenance awards after due consideration of the factors that the Legislature articulated. The statute does not direct the court to refer to any set of guidelines, and the court’s disregard of any such informal reference materials cannot give rise to a finding of abuse of discretion.”

The best approach to resolving spousal maintenance issues is by thorough preparation. Substantiating a spouse’s position on maintenance, with strong supporting evidence on each of the 13 factors, may be pivotal in achieving a favorable outcome in the case.

Scott David Stewart, a Martindale-Hubbell AV-rated attorney, is the founder and principal of the Law Offices of Scott David Stewart, pllc.

The Law Offices of Scott David Stewart, pllc, an Arizona divorce and family law firm with offices in Phoenix and Chandler, represents clients in Phoenix, Chandler, Scottsdale, Mesa, Gilbert, Glendale, Peoria, Tempe and Surprise. Areas of practice include divorce, child custody, parenting time and visitation, child support, spousal support (alimony), property and asset division. Every case accepted by the Law Offices of Scott David Stewart, pllc, receives personal attention, careful meticulous preparation, skilled negotiation, and aggressive litigation. The firm’s website is http://www.SDSFamilyLaw.com.

The firm will continue focusing on family law, including divorce, child custody, parenting time and visitation, child support, spousal support (alimony), and domestic violence.

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Filed Under: Family Court Tagged With: Divorce, Family Court, maricopa county family court, spousal maintenance

Divorce And What Happens Next

November 10, 2011 By Maricopa County Court Leave a Comment

By Holcy Thompson III -

Divorce

Divorce is often a very unpleasant experience, but at the same time it can open up a whole world of new possibilities. It means the end of a marriage which you entered into expecting it to last the rest of your life – which is painful in itself. But unfortunately life doesn’t always go to plan, and that’s something we simply have to accept. This article will cover what divorce is and how it differs from separation, how you can go about getting a divorce and what happens after the dust settles.

What is Divorce?

Divorce is a process which legally ends a marriage. It effectively ends all legal obligations you have to your spouse which were put in place when you got married. That said, divorce can create legal obligations in its own right – for example, you may have to pay support money to your former spouse depending on your relative financial situations and your circumstances before your marriage.

This is different from legal separation. Legal separation allows you to live separately and effectively end your relationship, but in the eyes of the law you are still married. You’ll have a court order which lays out your obligations to your spouse for the time you’re legally separated. A legal separation is often used as a trial period so couples can see if they can work out their differences and decide if they want to move on to a divorce, which is a much more final legal move.

When you’re legally separated you’re still able to keep the medical and tax benefits that being married can bring, while still addressing issues like the division of assets and debt and child custody. If the legal separation is “successful” and you decide to follow it up with a divorce, often the precedents laid out by the legal separation agreement will simply be carried over to the divorce. In other words the same child custody and property division practices will be carried over.

How Do You Get a Divorce?

The rules surrounding filing for divorce differ from state to state. In general, the first step is to get and fill out the necessary legal forms, although you may want to talk with a lawyer before you do that to work out where you stand in terms of child custody, property, alimony and other important issues you’re going to have to work out.

You may want to consider going through a legal separation if you’re not entirely sure the problems in your marriage can’t be overcome. Sometimes time apart can be enough to realize the benefits of your marriage outweigh any troubles you’ve been having. If you’re absolutely certain problems can’t be overcome (abusive behavior, for example) then you should proceed straight to filing for divorce.

If you want to avoid a court battle it’s in your best interests to try to agree with your spouse on important issues like child support and property division (and trust me – legal battles are not pretty and are especially tough if you have children, so it’s better to work things out peacefully). If you think you can work things out but you and your partner aren’t really communicating, you can use a legal mediator to help you reach conclusions that work for both spouses.

What Happens After?

After the process is complete you’ll have to live by the agreements you made for your divorce (or the rules imposed by a judge, if you and your spouse could not agree on different issues). This can be difficult if you have to give up property and access to your children to your spouse, but there is often a silver lining. Being single again can be an enjoyable experience if you approach it from a positive angle.

Ultimately it’s important to remember that life goes on. If your spouse initiated the end of the marriage, try not to get stuck on trying to piece things back together – painful as it may be, your chances of repairing a marriage after a divorce are very slim. You’re better off looking at the situation from a different perspective: that now you have the opportunity to find someone new who’s an even better match for you.

Visit the Divorce Laws

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Filed Under: Family Court Tagged With: arizona divorce, Child Support, Divorce

Moving Children Out of State After a Divorce

October 4, 2011 By Maricopa County Court Leave a Comment

By Joseph Devine

When two parents decide to get a divorce, one of their main concerns is protecting their children and providing for them. Child custody and child support are some of the major issues that must be decided when a divorce involves children. Typically when two parents divorce, either the parents are awarded joint physical custody, or one parent is granted physical custody and the other is given visitation rights. The court will always try to rule in the best interests of the child, and if both parents are willing and able to be involved, the court will usually rule for both parents to have custody. Unfortunately, a parent’s custody or visitation rights can be threatened if one parent decides to move out of state with the children.

Is it Legal to Move the Children After a Divorce?

If a parent with joint or sole physical custody decides to move out of state, s/he must first get approval from the judge or court who decided the divorce. The other parent may feel that his or her parental rights would be compromised by the move and may object to the children being taken out of state. If the judge or court feels that the move would be against the children’s best interests by taking away the opportunity to see one parent, they may deny the request to move. While it may seem inconvenient to have to get the court’s approval, it is important to remember that the move could be detrimental to the children’s lives by denying them time with a parent.

Moving Without Permission

Sometimes a parent decides to move out of state without the court’s permission, effectively taking the children away from the other parent against his or her will. If this happens, the custodial parent who took the children could be held in contempt of court. A civil contempt of court action could order the parent to return the children to the state and appear before the court. If he or she refuses, the offending parent could be heavily fined and/or jailed.

Negotiating with Your Ex Spouse

If you decide that you want to move out of state with your children, or must move away from employment reasons, try talking to your ex about the move first. S/he may object, and it may take some negotiating to decide upon an agreement. Some options that may make the deal more agreeable would be to agree to pay for a plane or train ticket for the other parent to come visit periodically, or to give the other parent more time with the children over school breaks and holidays. If your spouse absolutely will not compromise but the move is necessary for your job, you may appeal to the judge or court and explain the importance of the move.

No matter how a difficult a move may seem for parents, it is often much harder for children. Not only is a move to a new area and school intimidating, the children may also feel isolated from their other parent. If you are considering or anticipating a move to take your children or have your children taken away, consider talking with an experienced child custody lawyer. A child custody attorney can provide sound legal advice and assistance to help assist you with your case.

For More Information

To learn more about child custody issues and how you can protect your parental rights, please visit the website of the Austin child custody lawyers of Slater Kennon & Jameson, LLP today.

Joseph Devine

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Filed Under: Child Custody Tagged With: Child Custody, Divorce, moving children out of state after divorce

Parenting Coordination – A Missing Piece Of The Divorce Puzzle

September 30, 2011 By Maricopa County Court Leave a Comment

By Cindy Harari, Esq. -

Parenting coordination is a Alternative Dispute Resolution process. It is not therapy, advocacy, or evaluation. A Parenting Coordinator (“PC”) provides the following services to families before, during, and after divorce: assessment, education, coordination, conflict management, mediation, and arbitration – all related to child-focused issues. Typically, the PC is court-appointed in “high conflict” cases after parents have demonstrated their inability to resolve child-focused issues. But wouldn’t it make more sense to be proactive and give families access to parenting coordination as a resource early in the process? Doesn’t it make sense to have a trained professional available to work with both parents to help manage parenting issues and develop new communication and problem-solving skills as their family structure changes through divorce?

I suppose the answer depends on many factors, including the qualifications of the PC, authority of the PC, and accountability of the PC. Since there is no national licensing or certification body for PCs, we must look to state statutes for guidance. Qualifications for a PC established by statute may be intentionally vague, such as one who must be “an individual with appropriate training and qualifications, and must have a perspective acceptable to the court” in Colorado, or a licensed attorney or mental health professional with a specific number of years and type of experience and training in North Carolina. The key is to find a qualified PC whose focus is the Alternative Dispute Resolution (“ADR”) process, not therapy, advocacy or evaluation.

Assuming attorneys and families can find suitable professionals to work with them solely on child-focused issues within the ADR process, what authority should the PC have? It is generally accepted that PCs cannot make decisions that affect the substantive rights of the parties (i.e. changes in legal custody, physical custody, visitation and child support). Can the PC be the Final Decision Maker regarding any specific issues? Authority of the PC will determined by state statute and/or court order (if they exist), but what about those families who work with a PC in the absence of a statute or court order? All PCs (whether court-appointed or not) should have an agreement for clients to sign that precisely sets forth the parameters of the PC’s authority as well as all other terms of the professional relationship.

Only a handful of states have PC legislation. Oklahoma was the first state to pass the Parenting Coordinator Act in 2001. Idaho, Oregon, Texas, North Carolina, Colorado and Louisiana have passed PC statutes since then. In Minnesota, “expeditors” are appointed to arbitrate parenting plans. In Arizona, “family court advisors” monitor compliance with visitation and custody orders. In California, “special masters” and “referees” are equivalent to PCs. In Ohio and Wisconsin, arbitration statutes are used to facilitate parenting coordination. In Florida, there are Administrative Orders regarding parenting coordination in some circuits but not in others. Currently, an Ad Hoc Committee of the Family Law Section of The Florida Bar is working on Parenting Coordination legislation. I am a member of this committee together with other attorneys, judges, mental health professionals, mediators, and experts in the field of domestic violence.

PCs are currently working by court appointment (or by private agreement) across the country. In states that do not have statutes, issues arise concerning lack of uniformity about qualifications, authority, accountability and more. Consequently, vigilance is necessary to be certain that PCs are qualified through professional licensure in law or mental health, are trained in mediation, have a working knowledge of child and adolescent development and family systems, have specific training in parenting coordination and the ability to work within the framework of the ADR process, rather than therapy, advocacy or evaluation.

There are some PCs who liken their work to “couples counseling” – it isn’t. Parenting coordination is not therapy. A PC will try to “work their way out of a job.” There are some PCs who take sides with one parent or the other – that’s unusual because the PC is defined as “impartial” or “neutral” in all state statutes. If the PC is court-appointed, the PC may be asked to make recommendations to the Court, however, that does not relieve the PC of the duty to be impartial. The issue of accountability has several dimensions. First, there is the question of opportunity for review of a PC’s decisions and recommendations. In court-appointed cases, there are due process safeguards built into court orders and statutes. However, those PCs who work without a statute or order must have very clear parameters for their work. Next, there is the issue of professional accountability and ethics since there is no entity that oversees the conduct of PCs or can be responsive to a consumer complaint.

It makes sense for families to have access to PCs to do this important work and establish new communication and problem-solving skills early in the divorce process. Families must develop the tools they need to avoid conflicts, rather than continue along a downward spiral as parenting issues spin out of control, damaging children, sometimes irreparably. Why wait until a family situation becomes unbearable to go to court to petition for appointment of a PC? Attorneys and judges do not have to micro-manage parenting issues. It makes more sense for attorneys to recommend working with PCs early in the divorce process to avoid litigation regarding child-focused issues. Why insist on a court order? Stipulations are more in sync with the peaceful divorce model. Let’s make attorneys and families aware of this valuable alternative approach to the practice of family law.

Oh – and what if one parent wants to work with the PC and the other doesn’t? That, too, will have a positive impact on the family – it’s “the power of one.” One person has the ability to shift the family dynamics by developing new communication and conflict management skills. It takes commitment and perseverance — and it works.

Cindy Harari, Esq. is an attorney, parenting coordinator, divorce coach, trained mediator, and arbitrator. Ms. Harari’s professional training combined with years of practical experience gives her a unique perspective and distinctive insight regarding issues of divorce and parenting.

For additional information, please visit http://www.solutionsnottalk.com

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http://EzineArticles.com/?Parenting-Coordination—A-Missing-Piece-Of-The-Divorce-Puzzle&id=1183082

Filed Under: Child Custody Tagged With: Child Custody, Divorce, Parenting coordination

Police Power Expanded As Miranda Warnings Are Scaled Back

September 14, 2011 By Maricopa County Court Leave a Comment

By Michael S Baker -

Recently in Maryland v. Shatzer, the United States Supreme Court held that invoking the Miranda right to counsel does not bar all further questioning. The police may question the suspect again, and without counsel present, as long as they wait until 14 days after the suspect has been released from police questioning.

The Miranda Case

“You have the right to an attorney.” These words signify more than the final scenes of popular television police shows; they are part of a carefully prescribed measure to protect the constitutional rights of suspects.

In 1966, in Miranda v. Arizona, the Supreme Court acknowledged the “inherently compelling pressures” suspects face when interrogated while in police custody. In order that the coercive pressure not overwhelm the suspect’s Fifth Amendment rights, the Court established the rule that police officers must notify suspects of their right to remain silent and to have an attorney present.

The suspect may then:

Invoke the right to remain silent, in which case the interrogation must end
Invoke the right to an attorney, in which case the interrogation must cease until an attorney is present
Waive both rights; provided that the waiver is knowing, intelligent and voluntary, and questioning may continue

The Edwards Case

In 1981, the Court added another layer of protection for suspects, addressing attempts at subsequent interrogation. In Edwards v. Arizona, the Supreme Court stated that once a suspect has invoked the right to counsel, that suspect “is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.”

The court reasoned that if the authorities are allowed to make subsequent inquiry, any waiver obtained would be the product of the “inherently compelling pressures” and therefore not voluntary.

The Shatzer Case

In February 2010, the Supreme Court revisited the issue of requestioning in Maryland v. Shatzer. In 2003, police were investigating Michael Shatzer, who was in prison for a prior conviction. When a police detective tried to question Shatzer, he invoked his right to an attorney. The interview was stopped and Shatzer returned to prison.

In 2006, another detective reopened the case. He read Shatzer his Miranda rights again and this time Shatzer waived his rights and incriminated himself. Shatzer then claimed the statements could not be used at trial because he should not have been requestioned without an attorney present after he invoked his right to counsel in 2003. The state countered that requestioning was not prohibited because there was a break in custody for Miranda purposes.

Requestioning After Break in Custody

The Supreme Court explained the danger the Edwards decision was intended to avoid was suspects’ losing a sense of control when held in continuous custody and repeatedly questioned despite a request for counsel. Therefore, the Court saw little risk that a subsequent waiver would be coerced when the suspect was first released from pretrial custody and given time to return to normal life.

Justice Scalia, writing for the majority, expressed distaste for deterring voluntary confessions, an “unmitigated good.” The Court concluded that Miranda protections are sufficient even when the suspect has requested an attorney and is later reinterrogated without an attorney present, so long as there is a break in custody long enough to dissipate the coercive effects of being in custody.

Length of Break in Custody

Rather than deciding only the question before it – whether two and a half years was a sufficient break in custody – the Court took an unusual step in setting a precise length of time required for a break. The Court stated that 14 days provides plenty of time to reacclimatize to normal life, consult with family and counsel, and eliminate the coercive effects of being held in custody.

What Constitutes a Break in Custody?

Additionally, the Court addressed whether Shatzer’s return to prison amounted to custody for Miranda purposes. The Court answered that lawful imprisonment resulting from conviction does not present the coercive pressures of Miranda custody.

When imprisoned suspects are released from questioning, they return to their accustomed environment and routines, with the same amount of control over their lives that they had prior to interrogation. Continued detention is not dependent upon the questioning, so the Court found the compelling pressures of custody end with release back to the general prison population.

The Effects of Shatzer

Even if a suspect requests counsel, the police may make subsequent attempts at questioning without a lawyer present as long as they wait 14 days between attempts. The Court left open how long these 14-day-spaced attempts could be ongoing.

An experienced attorney can protect suspects’ rights throughout the investigation up to trial by advising suspects of their right to counsel during any police questioning.

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Filed Under: Criminal Court Tagged With: attorney, attorneys, criminal defense, Divorce, law firm, law office, lawyer, lawyers, Legal Advice

Child Custody – Things the Judge Will Consider

July 14, 2011 By Maricopa County Court Leave a Comment

By Lucille Uttermohlen -

Whether you are getting a divorce, or were never married, the court has guidelines it must follow in awarding custody of a child. In general, it is the court’s duty to place the child where it would be in his/her “best interest” to live. The following are some of the things a judge would normally consider.

The age and sex of the child can be important. If a boy is old enough to decide that he wants to spend more time with his dad, the judge may let him move in. If a girl feels that her step-mother is … well, not the good witch, a court may listen to what she has to say in favor of her mother’s home. The child must be old enough, and sufficiently mature to understand what he/she is requesting. If the judge thinks he/she is, serious attention can be paid to the child’s wishes.

The persons sharing the custodial parent’s home can be relevant to a custody modification. If the mother’s boyfriend is abusive, or the father’s new wife is hostile to his kids, the court may decide that the child would be better off with the other parent. If the child is mistaking needed discipline for cruelty, however, the court may decide that his/her stability is best served by remaining with the custodial parent, even if that parent won’t let the child blast his music at full volume whenever he/she wants.

If there are other children, the court may look at whether the child would suffer by being separated from his/her siblings. Even half siblings can form strong bonds, and it may not be good for the child to live in the other parent’s home if to do so would cause them to be apart. This factor can be neutralized by the existence of half siblings in both homes. Still, the child’s relationship with these other children can be important.

Drugs and alcohol can also play a part in a custody determination. Obviously, a parent who drinks to excess or engages in the use of recreational drugs may lack the judgment to provide a safe home for the child. The risk of dangerous behavior or even being jailed could make this kind of parent a bad choice for a child’s primary caretaker. In addition, if the parent is violent, or can’t protect the child from others who are, the child may be better off in the other parent’s home.

The things a judge uses to determine where a child should be placed, also depend on the situation. Most judges don’t like to talk to small children because they are unable to appreciate the significance of the proceeding. However, an older child may be able to provide useful information regarding his/her own best placement. School records can also be useful in assessing a child’s home situation. A straight “a” student who is suddenly flunking may be in need of the other parent’s care. If the child is getting therapy, the counselor’s opinion may be valuable. Finally, the court can ask for reports from independent persons, such as guardian ad litems, if the judge is convinced that the parties and their witnesses cannot give adequate information on which to base a fair decision.

Lucille Uttermohlen has been a family law attorney for 27 years. If you hav questions about divorce, or any other legal issue, visit Lucille at http://www.couple-or-not.com for answers.

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http://EzineArticles.com/?Child-Custody—Things-the-Judge-Will-Consider&id=2789543

Filed Under: Child Custody, Family Court Tagged With: Child Custody, court orders, decrees, Divorce, parental rights, paternity