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