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