Support Changes if You Don’t Visit as Agreed

A mother commenced dissolution of marriage matter, with a minor child, in November, 2007. In March and April, 2008, the trail court entered temporary orders, including an order for child support in the amount of $1,665.00 per month, and an order for temporary parenting time to Father of alternating weekends (First Parenting Plan, or “FPP”).

In September, 2008, the parties entered a Rule 69 Agreement, wherein they agreed to deviate from the Guideline calculation for support of $1,665.00 per month, to $300.00 per month, in recognition that Father incurred significant travel expense to travel from his state of residence, California, to Arizona to exercise parenting time pursuant to the FPP.

Thereafter, Father lodged a decree which purported the child support deviation to be “permanent.”Mother objected to the decree, alleging the Rule 69 Agreement did not include a “permanent” deviation. The trail court ordered the parties to arbitrate the final language of the decree. In October, 2009, the trail court adopted a revised parenting plan (“RPP”), where Father exercised parenting time only on “the second weekend of every second month.” On October 30, 2009, after the arbitrated decree had been finalized, but before the trail court entered arbitrated decree, Mother filed a petition to modify child support, alleging Father’s travel expense to exercise parenting time was reduced by entry of the RPP, and that Father did not exercise any parenting anyway. Thereafter, the trail court entered the decree, held child support modification hearing, denied Mother’s petition to modify support, and denied Mother’s motion for new trial.

As Mother argued to the trail court, Mother argued to the court of appeals that Father’s failure to visit the child and travel to Arizona, combined with the reduced parenting time of the RPP adopted at Father’s request), constituted a material change of circumstances warranting modification of the child support obligation. Father argued to the court of appeals that when the trail court entered the decree, it already adopted the RPP and, thus, the reduced parenting time did not represent a change of circumstances existing at the dissolution.

The court of appeals found settlement agreements do not preclude modification of support, custody, or parenting time: Settlement agreements, such as the parties' Rule 69 Agreement, do not preclude the modification of “terms concerning ... the support, custody or parenting time of children.” Ariz.Rev.Stat. (“A.R.S.”) § 25–317(F) (2001). An “order for child support may be modified or terminated on a showing of changed circumstance that is substantial and continuing.” A.R.S. § 25–503(E) (2009).

The court of appeals further found the difference in the anticipated travel costs associated with exercise of the FPP, and the travel costs actually incurred (or not incurred as a result of Father’s failure to exercise the RPP) is a substantial and continuing change of circumstance, which warranted a modification of the child support order, pursuant to A.R.S. § 25–503(E).

The court of appeals held the trail court abused its discretion by denying Mother’s motion for new trial, reversed the denial, and remanded the case for a new hearing on Mother’s petition to modify child support consistent with the court of appeals decision.

How Parents are Using Child Obesity as a Weapon in Divorces

I was reading the County Bar Associations newsletter and came accross this interesting article that was writen by Tamara Abraham that I found very interesting and would like to share.

Family lawyers have revealed how child obesity is increasingly being used as an argument in divorce court custody battles.

They say separating parents in the U.S. are now regularly accusing one another of allowing children to eat too much junk food, and not encouraging them to do enough exercise.

Risk of bullying and obesity-related diseases, such as diabetes, are often cited as reasons children should live with one parent rather than the other.

Douglas Gardner, a family lawyer in Arizona, told the Wall Street Journal: 'It's come up quite a bit in the last couple of years. 'Typically, one parent is accusing the other of putting a child at risk of developing diabetes or heart disease - or saying that the child is miserable because he's getting made fun of at school.'

While evidence and outcomes vary dramatically, it marks a shift in the nature of arguments employed in custody battles. Jeff Wittenbrink, a family law specialist in Baton Rouge, Louisiana, added: 'It used to be constantly and consistently about smoking. It's only been recently where one parent thinks their kid's not active enough, is gaining weight and eating sugary food.' In a survey by TotalAttourneys.com, lawyers said that the subject was becoming a bigger issue in custody battles because the public is becoming more conscious than ever of the health risks associated with obesity.

'If all things are equal but one person only feeds fatty foods and the children have weight problems... it can become an important distinguishing factor'.

Indeed, the trend follows a series of high-profile cases and debates surrounding the subject.

In 2009, a 555 pound teenage boy in South Carolina was taken into state custody after his mother was arrested and charged with criminal neglect. And just this summer, Boston obesity expert David Ludwig sparked controversy when he wrote in an article that 'in severe cases of childhood obesity, removal from the home may be justifiable.'

But, legal experts warn, the obesity argument is only likely to have impact in severe cases. Chicago lawyer Jonathan Merel explained: 'If one side is scratching to find something wrong with the other person, the courts might not give it the same weight. 'If all things are equal but one person only feeds fatty foods and the children have weight problems, I think it can become an important distinguishing factor.'

Custody Battles: Children in the Vortex

The maelstrom of conflict between parents in a divorce or custody battle often catches up the children and dashes them against the same rocks that brought the marriage to destruction.

Even the mildest custody conflict can damage children and their relationships with one or both parents, but the injury can be severe when the conflict is intense and where one or both parties bring the children into the vortex.

Judge Larry Primeaux, Chancery Court, 12th District of Mississippi has some great advice for parents. He says:


1. A custody dispute is not about winning or losing. Custody is decided on the basis of what is in the best interest of the children. No matter what the judge decides, his or her decision will be based on what is best for the children. Help your client understand [the relevant factors], how they apply in her case, and how to maximize her strong points while minimizing her exposure on the weak points.

2. Hate and revenge do not help. If your client’s motivation for custody is hate and/or revenge, he will be operating under a considerable disadvantage because (1) those are not positive factors under Albright for custody, and (2) they communicate to the children that they are spoils of war to be won instead of children who are to be loved no matter what the controversy is between the parents.

3. Never allow the children to make the custody decision. Children do not know what is best for them. They are subject to all sorts of influences, the strongest of which appeal to what they believe they want. It is appropriate to ask a mature child’s opinion, but only as input, never as a final decision. The parent or lawyer who tells a child “You will get to decide when you reach x age” is doing the child a great disservice because the law never gives the child a right to finally decide; that decision is always up to the judge.

Children who are made to decide often feel that they have betrayed one parent or the other. Making a child decide is putting the child squarely in the middle of the conflict.

4. Children who are placed in the middle learn to manipulate. Parents who put their children in the middle usually find that the children become master manipulators, playing both sides against each other to gain whatever it is that the child wants or thinks he wants.

5. Putting the children in the middle complicates the case. When the parties put the children in the middle, the resulting conflict spawns contempt proceedings, modifications, more discovery about all kinds of peripheral matters, and adds expense, stress, conflict and injured relationships to everyone’s plates.

6. Drop the drama. The only enjoyable thing about a divorce or custody battle for most people is the attention and sympathy they derive from others over the suffering and pain they have to endure. So when they find their friends’ and family’s attention wandering, they will ramp up the drama to regain the spotlight. That’s self-defeating because it usually takes some kind of negative action to stimulate the other side into conflict. The best and most productive policy is to drop the drama and act like an adult and a caring parent.

7. Act like an adult. The best behavior you can model for your children is to act like an adult. Treat the other party with the respect he or she deserves as parent of your child.

Eschew juvenile name-calling. Turn your back on invitations to argue. Avoid sarcasm and profanity. No threats, veiled or otherwise. Your children are watching and learning from your every move.

An Interesting Case: Is Drug Use Ok Prior to Visitation Acceptable?

In a recent case in the New Jersey Superior Court, Appellate Division, Case Number: A-2571-10T4, filed: December 21, 2011 declared that not all instances of drug ingestion of a parent will serve to substantiate a finding of child abuse or neglect. The court was addressing a case involving a father with supervised visitation with his daughter due to charges of assault and child abuse.

The Division of Youth and Family Services had obtained an order restricting the father's contact with his daughter to division-supervised visits. He was also ordered to attend substance abuse treatment and submit to urine testing.

At supervised visits, the father tested positive for cocaine and marijuana, and later admitted using such drugs two days prior to the visits. (The test results came back several days after the visits, which the visitation supervisor reported were uneventful, with the father acting appropriately and showing no signs of impairment.)

Finding that the father had not fully cooperated with the recommended drug treatment, the trial court held that he had exposed the 11-year-old daughter to a substantial risk of harm during the visits by testing positive for cocaine and marijuana, and concluded that the division had proven by a preponderance of the evidence that he had neglected her.
Reversing, Judge Ellen L. Koblitz accepted the trial court's factual findings, but disagreed that such behavior inherently created a substantial risk of harm to the child. The Court of Appeals noted that the Division reported that the father behaved appropriately at both supervised visits and demonstrated no indicia of impairment. Thus, the State had not demonstrated any risk, let alone one of a substantial nature, to his daughter.

“Contrary to the trial judge's conclusion, use of illegal drugs days prior to a supervised visit does not as a matter of law constitute neglect.”

“We recognize that the use of illicit drugs is illegal and that a parent should not exercise visitation, even supervised visitation, while impaired. However, Title 9 [incorporating the state child abuse statutes] is not intended to extend to all parents who imbibe illegal substances at any time. The Division would be quickly overwhelmed if law enforcement was required to report every individual under the influence who had children.”

For more information visit: DiscountDivorcePro.com

Consider Fairness After Divorce

By BERNEY WILKINSON

In my last column, I presented one of the most common pitfalls following a divorce. Today we will focus on another issue related to parenting following a divorce.

Last week's issue related to how much time the children spend with each parent. This often creates a great deal of strife, stress and frustration for the parents and the children. Children do not always understand they cannot do something because it would cut out "time" they would spend with their mom or dad.

In fact, when I talk with these kids, they often say "all we do is sit around the house anyway, why can't I go do something that I want to do?" The kids have a point. However, because parents are so hung up on time, they cannot see what it is doing to their children. The parents get stuck on the issue of fairness, which just so happens to be the second pitfall.

Though related to the issue of time, the issue of "fairness" often complicates life following a divorce. For parents, fairness usually includes two things: time-sharing and money. In regard to time-sharing, parents often voice the same issues discussed last week related to time. That is, the most "fair" time-sharing schedule is 50/50. While that schedule works very well for some children, it is not at all recommended for others. Many children need consistency that includes sleeping in the same bed more nights than not.

When parents are so stuck on fairness, they have difficulty seeing what is best for the child, as opposed to what is "fair" for the parent. In these situations, I remind parents of life before the divorce.

Prior to the divorce, how much time each night did each parent spend, one-on-one, with the child? Probably not a lot of time, unless they were helping him/her with homework or eating dinner together.

Most of the time, the child is playing (outside or with video games) or doing homework between the time they get home from school and preparing for bed. I have never met a parent who spends four hours of one-on-one time each night with their child. It just does not happen.

So why is it such an issue after the divorce that parents are willing to have an ongoing court battle over it that could last years? It just is not healthy for the child.

The second issue of "fairness" relates to money. As the family dynamics change, so do financial resources for the respective parents. While one parent may have the ability to take the children to Disney, the other may not. While one parent can buy the children "everything they want," the other parent may be financially limited. When these situations occur, I often hear from parents claiming, "My son's father buys him whatever he wants, and I can't. He is trying to turn my son against me." To these parents, I find myself saying, "You're right, it is not fair. But who ever said it would be?"

Nothing about these situations are fair, they just are what they are. If the father (or mother) is able to turn the son against the other parent by buying him things, work needs to be done on the parent-child relationship. But that is not necessarily the other parent's fault. Does that happen? Sure, there are times when the intent is to jade the child in one direction or another. But that is not typical.

When it comes to "fairness" after a divorce, parents must consider what is "fair" for the child. Is it "fair" the child has to split his time between his parents? Is it fair the child does not get to sleep in the same bed every night? Is it fair the child feels pulled in two directions because he wants both parents to be happy?

Parents are encouraged to consider how their personal views of fairness may affect their child (positively or negatively). What may feel fair to them may be unfair to the one who did not have a choice in the divorce.

For more information visit DiscountDivocePro.com or call 602-896-9020

Grandparents Visitation

One of the most important issues facing families these days is the issue of grandparents' rights with respect to their grandchildren. In some situations, grandparents seek to have visitation with their grandchildren and in other situations, they seek to have full custody of the children instead of the natural parents.

When a grandparent seeks visitation with a grandchild in Arizona , such a request is made pursuant to the law. In considering a request for grandparent visitation, the Court must consider if the requested visitation is in the best interests of a child. A grandparent can only request visitation if they meet one of the following three situations: if the marriage of the parents of the child has been dissolved for at least three months, if a parent of the child has been deceased or has been missing for at least three months, or the child was born out of wedlock.

In determining what amount of visitation, if any, is in a child's best interests, the court must also consider the historical relationship, if any, between the child and the person seeking visitation, the motivation of the requesting party in seeking visitation, the motivation of the person denying visitation, the quantity of visitation time requested and the potential adverse impact that visitation will have on the child's customary activities, and if one or both of the child's parents are dead, the benefit in maintaining an extended family relationship.

Under Arizona law, the family court must also apply the presumption that a fit parent acts in his or her child's best interest in decisions concerning the child's care, custody and control, including decisions concerning grandparent visitation. Therefore the court must give special weight to a fit parent's determination of whether visitation is in the child's best interest.

If a grandparent wishes to seek custody of a minor child, such a request can be filed in the family court. In order for a grandparent to be awarded custody or a minor child, the court must find that the grandparent stands in place of a parent and that the child and grandparent have formed a normal child-parent relationship, that It would be significantly detrimental to the child to remain or be placed in the custody of either of the child's living legal parents who wish to retain or obtain custody, and that the parents were not married to each other or one of them is deceased. If a person other than a child's legal parent is seeking custody there is a reputable presumption that it is in the child's best interest to award custody to a legal parent because of the physical, psychological and emotional needs of the child to be reared by the child's legal parent. To rebut this presumption that person must show by clear and convincing evidence that awarding custody to a legal parent is not in the child's best interests.

For more information visit DiscountDivorcePro.com or call 602-896-9020.

Understanding the Differences Between Sole Custody and Joint Custody

In a divorce in Arizona, the way that legal custody is structured will ultimately have a significant impact on how future decisions affecting children will be made. Physical custody impacts where the child will live. Legal custody impacts day-to-day decisions such as health care, religion, education and other major issues. Custody arrangements may also impact visitation rights, child support and other matters.

Understanding the differences between sole custody and joint custody is important for parents going through a divorce or family law matter.

The concept of joint legal custody does not necessarily imply that the time spent with each parent will be equal, but it does mean that parents will consult with one another on important issues pertaining to their children. Parents with joint custody are encouraged to resolve disagreements amicably but may also petition the court to make a decision that is in the best interests of the child when agreement is not possible.

Since the courts in Arizona prefer that both parents have a relationship with their children, sole custody is much rarer than joint custody. When one parent is considered unfit, however, sole custody may be the best solution for the child. Sole custody does not automatically limit visitation rights, but the sole custodial parent is allowed to make the ultimate decisions on many issues even over the objection of the non-custodial parent.

For more information visit discountdivorcepro.com or call 602-896-9020 and speak with a paralegal.

Never Married and the Mother of My Child Will Not Let Me See My Kid

An action may be brought to establish the paternity of a child born out of wedlock, to compel the support of the child, and to establish custody and visitation rights. The action may be filed by the mother, father, or guardian where the child resides or may be found. A.R.S. § 25-803.

What should I do if someone I am not married to is pregnant and I want to ensure that she does not give the child up for adoption?

A father (or a person who thinks he is a father) who is seeking to establish paternity and wants to receive notice of adoption proceedings must file a notice of his claim of paternity and his willingness to support the child with the registrar of vital statistics. The notice may be filed before the birth of the child, but must be filed within thirty days of the birth of the child. A.R.S. § 8-106.01 and § 25-812.

Will I have to take a blood test?

In most cases no. However, the court may on its own motion or the motion of any party to the proceedings order blood or DNA testing.

What are my support obligations once paternity is established?

After a finding of paternity, the court shall determine the amount of past support to be paid. The court will not order past support back further than three years from the beginning of the proceeding unless it finds there is good cause. A father may also be ordered to pay the expenses of the childbirth. A.R.S. § 12-809.

What do I get custody or visitation rights?

Custody and visitation can be established through a paternity action by any party other than the state.

For more information contact an attorney or visit DiscountDivorcePro.com