Be consistent for your children

By Harry J. Lenaburg, Esq.

We are all familiar with how our children will attempt to play mom against dad when the child wants something.  At our house one of the first questions was “what did mom say?” or “what did dad tell you?”.  Children learn early to try to get around the rules, and they refine their attempts as they get older.
What this means for a couple with children who have divorced is that the parents should continue to be consistent in their dealings with their children.  So many tears have been shed, forests cut down to become paper, and dollars spent on attorney fees, counseling fees, court advisor fees, family assessment fees, parenting conference fees and the other costs involved in post dissolution family law matters because the estranged parents do not follow that simple rule.
Certainly there is a place in the system for all of these resources, particularly in abusive situations, or when a parent is unfit, though addictions or other emotional problems.  Every child has the right to be safe.  But let’s not allow the children to manipulate the situation in a way that causes court action and expense when it is the result of children pushing parent’s buttons to get something they want.




The Law Firm of Jessica M. Cotter, P.L.L.C.
18301 North 79th Avenue, Suite F-168
Glendale, Arizona 85308
602-843-3004
Jmcotterlaw.com
Jessica.Cotter@azbar.org

Terminations of Parental Rights in Arizona

By Harry J. Lenaburg, Esq.

Questions often arise in our practice about a biological parent “giving up custody” as a way to avoid any future responsibility for the payment of child support for their minor child or children.  Another question is “how do I terminate the biological father’s/mother’s parental rights so that my new spouse may adopt the child or children?”.

The bases and method of termination of parental rights is, not surprisingly, set out by statute in A.R.S. section 8-533.  The test is always the best interests of the child.  Grounds include, but are not limited to, abandonment, neglect or abuse of the child, mental health issues or chronic use of dangerous drugs or alcohol by the parent, that the parent is deprived of civil liberties and convicted of a felony as to prove that parent’s unfitness to parent.

A petition to terminate parental rights would be filed in the Juvenile Division of the county superior court.  Parental rights may also be terminated by the execution of consent to adoption by the parent.   A hearing will be scheduled, and a copy of the termination petition and notice of hearing must be served upon that parent.  A social study by an approved agency must be prepared and submitted to the court in order to obtain a termination in most cases.

Importantly A.R.S. section 8-539 describes the effect of the termination order.  The order “. . . shall divest the parent and child of all legal rights, privileges, duties and obligations . . . except . .  support from the parent.  This right of . . . support shall only terminate by a final order of adoption.”  This means that “giving up custody’ or “giving up parental rights” will not terminate the obligation to pay child support.

If you wish to attempt to terminate the rights of a biological parent, of if you have been served with a petition to terminate your parental rights, you should consult with an experienced termination/adoption attorney in your area to discuss your rights, obligations and how to proceed.

The Law Firm of Jessica M. Cotter, P.L.L.C.

18301 North 79^th Avenue, Suite F-168

Glendale, Arizona 85308

602-843-3004

Jmcotterlaw.com

Jessica.Cotter@azbar.org

Revocable Trusts versus Irrevocable Trusts

By Harry J. Lenaburg, Esq.

Many clients choose to include a Living Trust in their Estate Plan.  One reason to do so is to avoid the necessity of the filing of a probate action to transfer property when the client dies.  Many of these trusts are revocable however some clients choose to declare their trust irrevocable.  There are estate tax implications to trust planning, so a discussion with your CPA or tax accountant is in order.

If the trust is revocable, that means that the settler/trustor (the client or clients who establish the trust) have reserved to themselves the ability to amend their trust, and of transferring property to and from the trust as it suits their purpose.

If the trust is irrevocable, then once the settler/trustor transfers property to the trust, that property may not be removed and returned to the settler/trustor’s name.

Most clients prefer the freedom to transfer property to and from their trusts, so most trusts are the revocable variety.  However, as a general rule, once any settler/trustor of a trust dies, the trust become irrevocable under the terms of the trust.

Estate planning is important for all, so you should consult with an experienced estate planning attorney in your area to discuss the best options for you and your family.

The Law Firm of Jessica M. Cotter, P.L.L.C.

18301 North 79^th Avenue, Suite F-168

Glendale, Arizona 85308

602-843-3004

Jmcotterlaw.com

Jessica.Cotter@azbar.org

What do you do if you have a covenant marriage and you want a divorce but you do not meet the requirements?

By Jessica M. Cotter, Esq.

If you no longer want to be married to a person and you have a covenant marriage and you do not meet the requirements to get a divorce you can at least protect yourself and get a legal separation.  In order to obtain a legal separation the court has to find that one of the following is true:

1. The person being served with the petition for dissolution (the Respondent) has committed adultery;

2. The Respondent has committed a felony and sentenced to death or imprisonment in any jail;

3. The Respondent has not lived in the marital home for over a year before the filing for legal separation;

4. The Respondent has physically, sexually or emotionally abused you, a child or relative of yours as defined in A.R.S. 13-3601; 

5. You have lived apart for two years before you filed the petition for  dissolution;

6. The Respondents’ constant bad behavior or bad treatment of the person filing the petition for legal separation is so bad that you cannot live together anymore because it is not tolerable; or

7. The Respondent is abusing drugs or alcohol.  

It is not a simple process to get a Legal Separation when you have a covenant marriage. I would consult an experienced family law attorney in your area to assist you with this process. 

The Law Firm of Jessica M. Cotter, P.L.L.C.

18301 North 79th avenue 

Suite F-186

Glendale, Arizona 85308

Jmcotterlaw.com

Jessica.Cotter@azbar.org

602-843-3004

What do you do if you have a covenant marriage and you want a divorce?

By Jessica M. Cotter, Esq.


I have only assisted with 2 divorces that involved a Covenant marriage in my 10 plus years of practice.  Many attorneys have never come across the dissolution of a Covenant marriage.  If you want to get a divorce with this type of marriage the court has to find that one of the following is true:

1. Both parties agree to the divorce;
2. The person being served with the petition for dissolution (the respondent) has committed adultery;
3. The respondent has committed a felony and sentenced to death or imprisonment in any form of jail;
4. The respondent has not lived in the marital home for over a year before the filing for divorce;
5. The respondent has physically, sexually or emotionally abused you, a child or relative of yours as defined in A.R.S. 13-3601;
6. You have  lived apart for two years before you filed the petition for  dissolution;
7. You have lived separate and apart for a year after you were legally separated through the court; or
8. The respondent is abusing  drugs or alcohol.


It is not a simple process to get a divorce when you have a covenant marriage. I would consult an experienced family law attorney in your area to assist you with this process.

The Law Firm of Jessica M. Cotter, P.L.L.C.
18301 North 79th avenue
Suite F-186
Glendale, Arizona 85308
Jmcotterlaw.com
Jessica.Cotter@azbar.org
602-843-3004

If situations change after you are divorced, what do you do?

By Jessica M. Cotter, Esq.


Child custody/decision making

If there has been some difficulty co-parenting with the other parent or the other parent has had some personal issues that demonstrate their inability to parent, you may feel that action must taken to correct or change the situation.  The changes must be substantial and ongoing. The standard to be met is set out in Arizona  Revised Statues section 25-411.  If you want to file for a modification, then you need to make sure that you are in compliance with Rule 91(D) of the Arizona  Rules of Family Procedure. The rule requires you to file and serve the following:

1. A Petition to Modify Legal Decision making that states what the changes are and how drastic the changes are and that they will not improve. This needs to be notarized or if it is not then you need a sworn statement regarding the changes.

2. A Notice of Filling Petition for Modification of Legal Decision making.

This is just to get the process started. After the filing and service on the opposing party you must wait 25 days after the documents are served in Arizona (35 days if the service is out of state). Then you may provide a Request for Order Granting or Denying Custody Hearing to the Judge. If the court grants your hearing then you have to present your evidence to the court and there are no guarantees. I would highly recommend that you review your case with an experienced family law attorney before you file anything with the court.

Please check out next week’s blog about how to change parenting time.

The Law Firm of Jessica M. Cotter, P.L.L.C.
18301 North 79th avenue
Suite F-186
Glendale, Arizona 85308
Jmcotterlaw.com
Jessica.Cotter@azbar.org
602-843-3004

Keep Estate Planning Documents Current

By Harry J. Lenaburg, Esq.

Sometimes it takes a near tragedy to remind one how important it is to maintain your Estate Planning documents, with the most current information.  Suppose you had named your son as executor of your Will or as the individual with decision making authority under your Medical Power of Attorney.  On active duty in the military, that son is honorably serving us all overseas.

In a medical emergency your appointed agent is unavailable.  The remedy for this dilemma is to appoint an alternate executor or agent.  The language is simple, “In the event X is unable or unwilling to act as my (attorney in fact/agent/executor for example) I hereby appoint Y as my . . .

It is essential that you plan for contingencies.  If your estate planning documents are old, or the situation has changed (for example children were minors when you prepared your Will, and are now in their 20’s or 30’s)  I urge you to speak with an experienced Estate Planning Attorney to discuss your options, and modify any Estate Planning documents that should be updated.


The Law Firm of Jessica M. Cotter, P.L.L.C.
18301 North 79th Avenue, Suite F-168
Glendale, Arizona 85308
602-843-3004
Jmcotterlaw.com
Jessica.Cotter@azbar.org

What to do after the Dissolution or Paternity order is entered and the other side refuses to follow the court’s order.

Part Three: Any other order that has not been followed

By: Jessica M. Cotter, Esq.

Enforcement of child any other orders that have not been followed are governed by the Arizona Rules of Family Law Procedure rule 91(H). In order to enforce the order you must do the following:

1.     File an original and 3 copies of  Petition for Enforcement of the order that you want followed, which needs to contain the following information:

a.     Specific detailed facts supporting that the order was not followed

b.     The court still has power to make an order enforcing it.

2.     Prepare an order to appear and make three copies of the order

3.     Take a copy of the filed Petition for Enforcement Petition for enforcement of Child support, Spousal Maintenance and Medical and Dental costs for the child and three copies of the order and deliver them to the current Judge’s office.

4.     Once the Judge signs the order you have to have it served by a Process Server at least 10 business days before the hearing.

There are forms for Maricopa on the Superior court web site, which is as follows: http://www.superiorcourt.maricopa.gov/SuperiorCourt/Self-ServiceCenter/Forms/FamilyCourt/

This process is not as simple as it sounds. You should contact an experienced family law attorney in your area to discuss the issue or contact our office.

The Law Firm of Jessica m. Cotter, P.L.L.C.

18301 N. 79^th Ave, Ste F-168

Glendale, AZ  85308

602-843-3004

Jessica.Cotter@azbar.org

What to do after the Dissolution or Paternity order is entered and the other side refuses to follow the Court’s order

Part Two: Child Support, Spousal Maintenance or medical and dental cost for the minor child.

By: Jessica M. Cotter, Esq.

Enforcement of child support or spousal maintenance or medical or dental cost for the child is governed by the Arizona Rules of Family Law Procedure rule 91(c). In order to enforce the order you must do the following:

1.     File an original and 3 copies of  Petition for enforcement of Child support, Spousal Maintenance and Medical and dental costs for the child, which needs to contain the following information:

a.     A calculation of what is owed for child support or spousal maintenance. This can be listed in your decree or you can obtain a copy of this from one the following sources:

                                                                                                 i.      Child support clearing house or

                                                                                               ii.      Department of child support Enforcement.

b.     For medical, dental cost or vision reimbursement your need the following information;

                                                                                                 i.      A detailed summary of the costs

                                                                                               ii.      What portion was paid by insurance

                                                                                            iii.      Who paid the balance or is there a balance still owed

                                                                                            iv.      What portion of the medical bill does the other person owes. 

2.     File a completed financial affidavit with copies of the following documents

a.     The person’s most recently filed tax returns

b.     Your 4 most recent pay check

c.      Your most recent w-2s, 1099 or K-1

d.     Copies of the medical bills with receipts

3.     Prepare an order to appear and make three copies of the order

4.     Take a copy of the filed Petition for Enforcement Petition for enforcement of Child support, Spousal Maintenance and Medical and dental costs for the child and three copies of the order and deliver them to the current Judge’s office.

5.     Once the Judge signs the order you have to have it served by a process server at least 10 business days before the hearing.

There are forms for Maricopa on the Superior court web site, which is as follows: http://www.superiorcourt.maricopa.gov/SuperiorCourt/Self-ServiceCenter/Forms/FamilyCourt/

This process is not as simple as it sounds. You should contact an experienced family law attorney in your area to discuss the issue or contact our office.

The Law Firm of Jessica m. Cotter, P.L.L.C.

18301 N. 79^th Ave, Ste F-168

Glendale, AZ  85308

602-843-3004

Jessica.Cotter@azbar.org

What to do after the Dissolution or Paternity order is entered and the other side refuses to follow the court’s order.

Part one: Legal Decision Making (Custody) or Parenting time.

By: Jessica M. Cotter, Esq.

Enforcement of Legal decision making (Custody) or Parenting time is governed by the Arizona Rules of Family Law Procedure rule 91(G). In order to enforce the order you must do the following:

1.     File an original and 3 copies of  Petition for Enforcement of Legal Decision making (custody) or Parenting time, which needs to contain the following information:

a.     Detailed Facts of the violation of the order or enforcement 

b.     What do you want the court to do about it?

2.     Prepare an order to appear and make three copies of the order

3.     Take a copy of the filed Petition for Enforcement of Legal Decision Making and three copies of the order and deliver them to the current judge’s office.

4.     Once the Judges signs the order you have to have it served by a process server at least 10 business days before the hearing.

There are forms for Maricopa on the Superior court web site, which is as follows: http://www.superiorcourt.maricopa.gov/SuperiorCourt/Self-ServiceCenter/Forms/FamilyCourt/

This process is not as simple as it sounds. You should contact an experienced family law attorney in your area to discuss the issue or contact our office.

The Law Firm of Jessica m. Cotter, P.L.L.C.

18301 N. 79^th Ave, Ste F-168

Glendale, AZ  85308

602-843-3004

Jessica.Cotter@azbar.org

Grounds for Dissolution in Arizona

By Harry J. Lenaburg, Esq.

I have been an attorney practicing family law in Maricopa County, Arizona for 30 years; I meet on a regular basis with a spouse who is seeking information about the filing of a dissolution action.  There are many reasons a person may decide to at least meet with an attorney to discuss the various factors and procedures involved with a divorce.  Often financial issues and the stress those issues cause will lead to the estrangement of the couple.

However, it is often the case that infidelity occurs, and results in a breach of the trust that is essential to a rock solid marriage.  When I meet with clients who have endured the pain of such a breach I must explain to them that realistically speaking for purposes of the pleadings filed in a dissolution matter, this breach of trust is not a ground to state in the petition as a basis for the petition.

In Arizona, as in most states, the grounds for seeking the dissolution of marriage are that the marriage is irretrievably broken, with no prospect of reconciliation.  Unlike the past, when physical or emotional abuse, or infidelity, had to be demonstrated by evidence in court for the court to consider whether or not to enter a decree, irretrievable breakdown allows the entry of the decree.

That is not to say that physical or emotional abuse will not be a factor in the evidence presented to the court for purposes of other issues, such as legal decision making (custody), parenting time, or spousal maintenance (alimony).  As stated, the court can enter a decree based upon the testimony of one of the parties that the marriage is irretrievably broken, with no prospect of reconciliation.

The Law Firm of Jessica M. Cotter, P.L.L.C.
18301 North 79th Avenue, Suite F-168
Glendale, Arizona 85308
602-843-3004
Jmcotterlaw.com
Jessica.Cotter@azbar.org

If situations change after you are divorced, what do you do?

Parenting time

By Jessica M. Cotter, Esq.

If the parenting time schedule does not work anymore because the parties have moved far apart or the child is now older and can handle more time with the other parent and it has been over a year since the schedule has been changed or the other parent does not have the ability to care for the child or children, then you should file to modify parenting time.  When you file a petition to modify parenting time with the court then you need to make sure that you are in compliance with Rule 91(F) of the Arizona Family rules of procedure. The rule requires you to file and serve the following:

1. A Petition to Modify Parenting time that states in detail why there needs to be a change, what you want in the new schedule and if you have tried mediation first.

2. A copy of the order to appear:
a. You have to file number 1 put them in the judges box along with a blank order to appear.
b. The court will then fill in the order to appear to call you to pick it up.
c. Once you receive the filled out order to appear then you can serve the documents

This is just to get the process started. Then you have a hearing in which you have to present your evidence to the court and there are no guarantees. I would highly recommend that you review your case with an experienced Family Law Attorney before you file anything with the court.

The Law Firm of Jessica M. Cotter, P.L.L.C.
18301 North 79th avenue
Suite F-186
Glendale, Arizona 85308
Jmcotterlaw.com
Jessica.Cotter@azbar.org
602-843-3004

If situations change after you are divorced, what do you do?

Parenting time

By Jessica M. Cotter, Esq.

If the parenting time schedule does not work anymore because the parties have moved far apart or the child is now older and can handle more time with the other parent and it has been over a year since the schedule has been changed or the other parent does not have the ability to care for the child or children, then you should file to modify parenting time.  When you file a petition to modify parenting time with the court then you need to make sure that you are in compliance with Rule 91(F) of the Arizona Family rules of procedure. The rule requires you to file and serve the following:

1. A Petition to Modify Parenting time that states in detail why there needs to be a change, what you want the new schedule and if you have tried mediation first.

2. A copy of the order to appear:
a. You have to file number 1  put them in the judges box along with a blank order to appear.
b. The court will then fill in the order to appear to call you to pick it up.
c. Once you receive the filled out order to appear then you can serve the documents

This is just to get the process started. Then you have a hearing in which you have to present your evidence to the court and there are no guarantees. I would highly recommend that you review your case with an experienced Family Law Attorney before you file anything with the court.

The Law Firm of Jessica M. Cotter, P.L.L.C.
18301 North 79th avenue
Suite F-186
Glendale, Arizona 85308
Jmcotterlaw.com
Jessica.Cotter@azbar.org
602-843-3004

If situations change after you are divorced, what do you do?

By Jessica M. Cotter, Esq.

Child support 

If you are ordered to pay child support and you have a change in your financial circumstances that is out of your control, for example your company closes, you are laid off or your position is eliminated; the company restructures and this causes you to lose your job or your pay is decreased or you retire. The child is no longer in daycare. The parenting time changes or one of the children turns 18 and has graduated from high school; you have a child in your home or the other party earns more money. 

In order to modify child support there must be a 15% difference in what you would pay in child support or in what you would receive in child support. When doing this you need to make sure that you are in compliance with Rule 91(b) (2) of the Arizona Family rules of procedure. There are two methods which may be used to change the Child Support. The first requires that you file and serve the following documents:

1. A Petition to Modify Child Support that states what the changes are and how drastic the changes are and that they will not improve;

2. An Affidavit of Financial Information;

3. A copy of the order to appear:

a. You have to file number 1 and 2 and put them in the Judges box along with a blank order to appear

b. The court will then fill in the order to appear to call you to pick it up.

c. Once you receive the filled out order to appear then you can serve the documents 

4. Blank Affidavit of Financial information. 

This is just to get the process started. Then there will be a court hearing where you can present evidence to prove to the court how the circumstances have changed since you were divorced and ask the court to modify the amount of support.  Then the court will make its decision. There is no guarantee that the Child support will be lowered or increased. 

The second way to modify your child support is called the simplified method. For this method the court uses its own forms. You can get those forms on the Maricopa County Superior court website. You need to serve the following forms to the other party:

1. A request to modify- the Simplified process

2. Parents worksheet

3. Child Support order

4. Current Employer information sheet. 

5. A Blank request for hearing. 

Neither of the above methods guarantee that the Child Support will be changed and I would consult with an experienced Family Law Attorney in your area. 

Please check out next week’s blog about how to change Child Custody/ legal decision making. 

The Law Firm of Jessica M. Cotter, P.L.L.C.

18301 North 79th avenue 

Suite F-186

Glendale, Arizona 85308

Jmcotterlaw.com

Jessica.Cotter@azbar.org

602-843-3004

If situations change after you are divorced, what do you do?

By Jessica M. Cotter, Esq.

Spousal Maintenance

If you are ordered to pay Spousal Maintenance and it is either ordered by the Court or by agreement that the Spousal Maintenance may be modified when you have a life changing circumstance that is beyond your control.  Example would be that your company closes, you are laid off or your position is eliminated. Another would be the company restructures and this causes you to lose your job or your pay is decreased or you retire. If you were to lose your job and can not find a job making the same amount of money as you were when the order was entered then you can file with the court to modify or terminate your Spousal Maintenance.

When doing this, you need to make sure that you are in compliance with Rule 91(b) of the Arizona Rules of Family Law Procedure. The rule requires that you file and serve the following documents on the other person that is receiving spousal maintenance.

1. A Petition to Modify Spousal Maintenance that states what the changes are and how drastic the changes are and that they will not improve.

2. An Affidavit of Financial Information.

3. A copy of the order to appear
a. You have to file number 1 and 2 and put them in the Judges box along with a blank order to appear
b. The Court will then fill in the order to appear to call you to pick it up.
c. Once you receive the filled out order to appear then you can serve the documents.

4. A blank Affidavit of service.

This is just to get the process started. Then there will be a Court hearing where you can present evidence to prove to the Court the changed circumstances since you were divorced and ask the Court to modify or terminate the award.  Then the Court will make its decision. There is no guarantee that the Spousal Maintenance will be lowered or terminated.

This is not a simple process and I would recommend that you consult with an experience Family Law Attorney in your area.

Keep an eye out for next week’s blog which will discuss how to change Child Support.

The Law Firm of Jessica M. Cotter, P.L.L.C.
18301 North 79th avenue
Suite F-186
Glendale, Arizona 85308
Jmcotterlaw.com
Jessica.Cotter@azbar.org
602-843-3004

Qualified Domestic Relations Orders

By Harry J. Lenaburg, Esq.

Certain retirement plans that may constitute community property in Arizona are creatures of the Employee Retirement Income Security Act of 1974.  That law has been added to and changed many times since 1974, and its purpose was to establish minimum standards for pension plans in private industry.  Under the terms of the act in order to enjoy favorable tax status the pension plan must be “qualified”.
When a family court judge orders a division of a qualified pension the plan administrator will be unable to take any action without receiving a required Qualified Domestic Relations Order (QDRO).  This document, signed by the judge, directs the plan administrator on how to specifically distribute the funds in the plan.  This may sound simple enough; however, generally speaking each plan has their own form or format for the information regarding that plan, the member of the plan, and the non-employee recipient of a portion of the plan.  Here in the valley there are a handful of attorneys who prepare most of the QDROs.  The preparation of a QDRO is seldom included in the dissolution family law fee agreement in the divorce setting.
I am surprised at the number of individuals whom I meet with where their issue is a division of a qualified plan, and no one followed through with the preparation of the QDRO.  If a qualified plan is one of the community assets in your dissolution, be certain that a QDRO is prepared, signed by the judge, and properly delivered to the plan administrator.
We are always available to meet with you to discuss your Arizona family law issues.  Contact our office for an appointment.

The Law Firm of Jessica M. Cotter, P.L.L.C.
18301 North 79th Avenue, Suite F-168
Glendale, Arizona 85308
602-843-3004
Jmcotterlaw.com
Jessica.Cotter@azbar.org

Steps to take to move with a child, when there is a Family Court order in place

Part 2

By Jessica M. Cotter, Esq.

Once you have sent the notice that you plan to move with the child and someone filed a Petition to relocate, then it is up to the court to make the decision if it will allow the relocation.  The court looks at the following factors in determining if they will allow children to move:

·        Whether or not the parents can agree on joint legal decision making authority

·        If there is no agreement, why?  Is the failure to agree reasonable or is it influenced by another issue that does not involve the best interest of the child(ren).

·        The past present and future ability of the parents to cooperate in making decisions regarding the child(ren)

·        Is the contemplated order logistically possible?

·        What do the parents want?

·        What are the wishes of the child(ren)?

·        The child's relationship with other family members or other people that may impact the child's best interest.

·        The child's adjustment to home, community and school.

·        The health of parties, this includes mental health.

·        Who will allow frequent and meaningful contact with the other parent?

·        Who has been the primary caregiver?

·        Has there been any coercion of duress in obtaining an agreement.

·        Have the parties taken the parenting class.

·        Has there been domestic violence or child abuse as defined in A.R.S. 25-403.03

·        Whether one parent has intentionally mislead the court to cause a delay or increase the cost of litigation.

·        Whether asking for the child to move is not being done to stop the other parent from seeing the child or to make it difficult on the non moving parent to have a relationship with the child.

·        The potential improvements to the child’s quality of life and the potential improvement for the custodial parent’s quality of life.

·        Is the parent that the child is ordered to live with going to comply with the court orders about parenting time?

·        Whether or not the relocation will allow a realistic opportunity for parenting time with the other parent.

·        Whether or not the relocation will affect the child’s emotional, physical or developmental needs of the child.

·        The effect on the child’s stability if the child moves.

·        The motive of the parent who wants to move including if that parent gets more child support as a result.

These factors can be found at A.R.S. Section 25-403, and at A.R.S. section 25-408.  The state legislature has been reviewing the relocation statute with an eye on making changes to it.  The information provided in parts 1 and 2 represent the law at the time these posts were written, but understand that these statutes are subject to change.

As you can see trying to move with a child is very difficult to do. Please contact our office for a consultation or arrange one with an experienced family law attorney in your area.

The Law Firm of Jessica M. Cotter, P.L.L.C.

18301 North 79^th Ave F-168

Glendale, AZ 85308

602-843-3004

Jessicacotterlaw.com

Jessica.Cotter@azbar.org

Steps to take to move with a child, when there is a Family Court order in place

(Part 1)

By Jessica M. Cotter, Esq.

If you have a Family Court Order of Legal Decision Making (Custody) and parenting time and you want to take the child that is on that order with you, then look at Arizona Revised Statue 25-408 which gives the necessary steps to be taken in order to relocate more than 100 miles from the child’s current location within the state, and for any out of the state relocation.

The first thing to do is to send a written notice to the other parent with your plans to move, that will be received at least sixty days prior to the move. This notice needs to be sent by certified mail, return receipt requested, and the other parent must be the person who signs the receipt.  If this is not done then the court can impose a penalty for not doing so. The parent that is not moving has 30 days after the notice is given to file a petition with the court to prevent the relocation of the child. After waiting 30 days then the court may allow a petition to be filed only with a good reason. The moving parent can always file a Petition to relocate to determine if the move will adversely affect the parent who is not moving. 

After the Petition has been filed with the court, if the Parent that is moving has Sole Legal Decision Making (Sole Custody) and the move is necessary because of health, safety or employment or if the Spouse of the Parent has to move for the same reasons before the sixty day waiting period, then you can temporarily relocate with the child.   The court could still deny the relocation and order that the child be returned or modify its earlier order about who the child will reside with.  If there is an order of Joint legal decision (Joint custody) making then you can only move with the child before a court hearing if, the other parent agrees in writing.  If not, you have to wait for the court to have a hearing to make a determination if the court will allow the child to relocate.

In the next blog I will review the factors the court looks at in order to determine if the child is allowed to relocate out of the state of Arizona or more than 100 mile radius.

The Law Firm of Jessica M. Cotter, P.L.L.C.

18301 North 79^th Ave F-168

Glendale, AZ 85308

602-843-3004

Jessicacotterlaw.com

Jessica.Cotter@azbar.org

Third Party (Step-Parent) Rights to Legal Decision -Making Authority in Arizona

By Harry J. Lenaburg, Esq.

The right of a step-parents regarding legal decision- making (custody) with minor children is controlled by A.R.S. section 25-409.  A step-parent would be petitioning the court for that right pursuant to an ”in loco parentis” theory.  In loco parentis is defined in A.R.S. section 25-401(1) as “a person who has been treated as a parent by a child and who has formed a meaningful parental relationship with a child for a substantial period of time.”
The step-parent must stand “in loco parentis’, and the court must find that it would be significantly detrimental to the child to remain or be placed in the care of either legal parent who wishes to keep or acquire legal decision-making.   There also must not have been a court order regarding legal decision-making or parenting time within one year, absent reason to believe the child’s present environment would seriously endanger the child’s physical, mental, moral or emotional health.  At least one other factor must apply;  either one of the legal parents must be deceased, the child’s legal parents are not married at the time the petition is filed or a proceeding for dissolution of marriage or for legal separation of the legal parents is pending.
As a step-parent you should be certain to discuss these issues and your concerns with an experienced family law attorney.

The Law Firm of Jessica M. Cotter, P.L.L.C.
18301 North 79th Avenue, Suite F-168
Glendale, Arizona 85308
602-843-3004
Jmcotterlaw.com
Jessica.Cotter@azbar.org

Third Party (Grandparent and Great Grandparent) Visitation Rights in Arizona.

By Harry J. Lenaburg, Esq.

Just when you think a family law case is done because the Judge signed the court order,  other issues arise with legal decision making authority and the parenting time arrangements for the biological parents because they can be so difficult to comply with or enforce.  It often happens that the grandparents and/or great grandparents find themselves cut off from the relationship they have established with their grandchildren.  This may occur under a variety of different situations, and the legislature in Arizona has provided for that occurrence by statute.

Arizona Revised Statutes section 25-409 provides for so called ”Third Party Rights” and outlines the bases and procedures for an individual or couple who are not the biological parent of a child to secure visitation rights.  Jurisdiction to bring the action is set forth in Arizona Revised Statutes section 25-402(B)(2),  and the petition must be verified, or supported by an affidavit with detailed facts supporting the claim.  Other conditions include that one of the legal parents is deceased or has been missing, that the child was born out of wedlock or that the marriage of the parents of the child has been dissolved for at least three months.

As in every case involving a minor child, the court must determine what serves the child’s best interest.  Relevant factors in the decision include the historical relationship between the child and the grandparent, the motivation for the request for visitation, the motivation of the party denying the visitation and the amount of time being requested by the grandparent.  When possible the court will order the grandparent time to coincide with the parenting time of the biological parent.

Needless to say if you are a grandparent who finds himself or herself in the circumstance where you are being denied access to your grandchild you should consult with an experienced family law attorney in your area.  Our practice is located in Glendale, Arizona, and we would be glad to meet with you to review your situation and discuss your options.

The Law Firm of Jessica M. Cotter, P.L.L.C.

18301 North 79^th Avenue, Suite F-168

Glendale, Arizona 85308

602-843-3004

Jmcotterlaw.com

Jessica.Cotter@azbar.org

What are the legal issues when you have a Child and you are not married to the other Parent in the State of Arizona?

Part 3

By Jessica M. Cotter, Esq.

Once the court has determined paternity and entered the parenting time for each parent, then they must determine the appropriate amount of child support.  In a paternity case child support can go backwards three years from the date of the filing and service of the paternity case. If you make payments to the other parent it is imperative that you do so by check or money order, that you keep copies and that you label the checks or money orders as child support.

Calculating child support in Arizona is not always an easy task. It is a complex mathematical formula that is re-evaluated every several years to assure that the calculation remains in line with the current cost of living.  The court looks at the following information in order to determine child support to be paid:

              1.     The number of minor children of the relationship;

              2.     The ages of the children;

              3.     Both parents gross monthly incomes;

              4.     If either party is paying spousal maintenance;

              5.     If either party is receiving spousal maintenance;

              6.     If either parent has a child or children from another relationship and if 

                      either parent is paying child support;

             7.     The cost of health insurance for the minor child/children only

             8.     The cost of daycare for the child of this relationship;

             9.     An adjustment of the amount of parenting time;

            10.    If there is any extraordinary ongoing cost for a child with special needs.

Once the court reviews all of the information the Judge or Commissioner inputs the information into a child support calculator which calculates the final dollar amount for child support.  The above factors are just the tip of the iceberg when it comes to calculating child support in the state of Arizona.

As you have already read there are several unique issues when there is a child born out of wedlock.  Please see the two prior blog posts.

Please set up a consultation with our office if you would like to discuss your case or consult with an experienced family law attorney in your area.

The Law firm of Jessica M. Cotter, P.L.L.C.

18301 North 79^th Ave. Suite F-168

Glendale, Arizona 85308

602-843-3004

Jessica.Cotter@azbar.org

Jessicacotterlaw.com

What are the legal issues when you have a child and you are not married to the other parent in the State of Arizona?

Part two

By Jessica M. Cotter, Esq.

Once the court determines paternity the next two items that the court must determine are who makes the legal decision’s (Custody) for the minor child and how much parenting time does each parent exercise.

Legal decision making authority means the legal right and responsibility to make all non emergency legal decisions for a child including those regarding education, health care, religious training and personal care. For the purposes of interpreting or applying any international treaty, federal law, a uniform code or the statutes of other jurisdictions of the United States, legal decision-making authority means legal custody.

There are two types of Legal decision making authority and they are:

·        Sole legal decision making authority which means one parent has the legal right and responsibility to make major decisions for a child or children

·       Joint legal decision making authority which  means both parents share decision-making authority and neither parent’s rights nor responsibilities are superior except with respect to specified decisions as set forth by the court or agreement of the parents in the final judgment or order.

The statutory authority court uses to determine what type of legal decision making and parenting time is in the best interest of the children is codified in the Arizona Revised Statutes at 25-403, 25-403.01 and 25-403.2.  The judge will look at the following factors:

·        Whether or not the parents can agree on joint legal decision making  authority

·        If there is no agreement, why.  Is the failure to agree reasonable or is  it influenced by another issue that does not involve the best interest of  the  child(ren).

·        The past present and future ability of the parents to cooperate in  making decisions regarding the child(ren)

·        Is the contemplated order logistically possible?

·        What do the parents want?

·        What are the wishes of the child(ren)?

·        The child's relationship with other family members or other people that may impact   the child's best interest.

·        The child's adjustment to home, community and school.

·        The health of parties, this includes mental health.

·        Who will allow frequent and meaningful contact with the other parent?

·        Who has been the primary caregiver?

·        Has there been any coercion of duress in obtaining an agreement.

·        Have the parties taken the parenting class.

·        Has there been domestic violence or child abuse as defined in A.R.S. 25-403.03

·        Whether one parent has intentionally mislead the court to cause a delay or increase  the cost of litigation.

When the court rules on legal decision making authority, the judge must make specific findings based on the above factors to justify their ruling.

As you have already read there are several unique issues when there is a child born out of wedlock.  Please see the blog posted on July 8, 2013 and also a future post regarding child support.

Please set up a consultation with our office if you would like to discuss your case or an consult with an experienced family law attorney in your area.

The Law firm of Jessica M. Cotter, P.L.L.C.

18301 North 79^th Ave. Suite F-168

Glendale, Arizona 85308

602-843-3004

Jessica.Cotter@azbar.org

Jessicacotterlaw.com

What are the legal issues when you have a child and you are not married to the other parent in the State of Arizona?

Part one

By Jessica M. Cotter, Esq.


The first legal issue that must be determined is Paternity, or who is the biological father of the child.  An action to establish Paternity may be filed with the court by several different interested individuals or entities and they are as follows:

• Mother
• Father
• Guardian
• Conservator
• Best friend of a child or children born out of wedlock
• The state Attorney General’s office
• An adult child
• A public welfare official in the county where the child resides.

Once the Paternity issue has been bought to the attention of the court, and if no one has signed any documents indicating that they are the father of the child, or if the alleged father does not agree that it is his child a DNA test can be performed.  If  the results of the test indicate a 95% probability that the individual tested is the father and the report is not contested then the court will order that the individual is the biological father of the child.

An individual will also be presumed to be the biological father if any one of the following conditions is met:

• Mother and father were married 10 months prior to the child’s birth
• The DNA test indicates a 95% probability that he is the father
• Father signs the birth certificate
• A notarized statement by a witness who has personal knowledge of the child’s parents and which is also signed by both parents and witnessed.

Once the court has determined who the biological father there is no automatic determination of who has legal decision making authority over the child and such authority does not automatically default to the mother.  The person who has legal decision making authority over the child is determined by which parent the child has primarily resided with during the six months prior to the court making a determination of the paternity, unless there is a court order that states otherwise.
Realistically speaking, if there are no court orders in place, no law enforcement officer is likely to remove a child from one parent or another.

 As you have already read there are several unique issues which arise when there is a child born out of wedlock. In coming posts we will discuss legal decision making authority, parenting time and child support.

Please set up a consultation with our office if you would like to discuss your case or consult with an experienced family law attorney in your area.

Resources A.R.S. 25-803 25-807 and 25-814

The Law firm of Jessica M. Cotter, P.L.L.C.
18301 North 79th Ave. Suite F-168
Glendale, Arizona 85308
602-843-3004
Jessica.Cotter@azbar.org
Jessicacotterlaw.com

Step-Parent Adoptions in Arizona.

By Harry J. Lenaburg, Esq.

     As with just about everything in life the process for a Step-Parent to adopt a child can follow an easy path or a difficult path.  In many cases such an adoption will require a two step process.  Step one will be the termination of the parental rights of the biological parent, and step two, of course, is the adoption procedure itself.

     Occasionally a biological parent will consent to the adoption of the child by the step-parent, which will expedite the adoption process.  If not, then an action must be filed to terminate the parental rights of the biological parent.  Actions to terminate parental rights are filed in the Juvenile division of the superior court.  It may happen that parental rights are terminated through an action in a Juvenile Dependency matter.  Until the parental rights of the biological parent are terminated by court order, or the consent to the adoption is obtained, the adoption may not proceed.

     If the parental rights must be terminated then a termination social study must be prepared by an agency approved by the court.  Your adoption attorney can assist you with determining the appropriate agency to employ.  If the parental rights are already terminated, or the consent to the adoption is obtained, then there must still be a social study conducted.  However, if the step-parent has been married for more than a year to the biological parent (who must also consent to the adoption by the way) and has resided with the child for at least six months, then the social study will consist of only a state and federal criminal records check and a check of the central registry. 

     This is not an exhaustive discussion of the step-parent adoption process, but at least outlines the procedure for you.

The Law Firm of Jessica M. Cotter, P.L.L.C.

18301 North 79^th Avenue, Suite F-168

Glendale, Arizona 85308

602-843-3004

Jmcotterlaw.com

Jessica.Cotter@azbar.org