I have seen and heard more questions about same sex divorce recently.  Same sex divorce is mostly just like any other divorce.  For example, the division of property and debt is the same, any award of spousal maintenance is the same, and calculation of child support is the same.  The fact that the parties are the same sex makes no difference on these issues.

 

The only issues that have a different analysis for same sex couples are legal decision making (“custody”) of children and parenting time (“visitation”).  Because same sex marriage is so new, the law on these issues is still developing.  However, the reason that these issues are different is because only one spouse in a same sex marriage can be the biological parent of a child, and for several years only one spouse in a same sex marriage could be the adoptive parent of a child.  Therefore, the issue is whether the non-parent spouse is a legal parent of the child or is entitled to non-parent visitation.  There are cases in which one same sex spouse adopts children, but the other spouse is not an adoptive parent.  Courts have so far decided some of these issues in same sex divorces under the statute permitting courts to order visitation to non-parents (A. R. S. § 25-409).  In some cases, the Courts have determined that the presumption that the spouse of a woman who gives birth to a child is the other parent applies to same sex spouses pursuant to A. R. S. § 25-814.

 

In McLaughlin v. Jones, the a same sex couple wed and then one of the spouses became pregnant by artificial insemination.  The couple then entered into a written and signed agreement to jointly raise the child.  The Arizona Court of Appeals held that a same sex spouse gets the same presumption of parenthood when a female spouse gives birth to a child conceived during the marriage.  However, the other spouse may rebut the presumption of parenthood.  However, in this case the biological mother could not rebut the presumption because she had entered into a written and signed agreement to the contrary.  Therefore, the non-parent same sex spouse gets the presumption, but it should usually be easy to rebut the presumption, in which case visitation would be decided under the statute addressing non-parent visitation.

 

In Sheets v. Mead, a same sex, unmarried couple were foster parents to a child, but only one of the members of the couple eventually adopted the child because at the time same sex couples could not both adopt a child.  After the adoption, the couple eventually separated and the non-parent filed a petition for non-parent visitation.  The Arizona Court of Appeals held that a child adopted before the petition files a petition for non-parent visitation is not eligible for non-parent visitation under the statute.  The court based its ruling on extensive jurisdictional analysis and statutory construction.  The result may have been different had the petitioner filed her petition before the adoption.

 

In Goodman v. Forsen, a fit mother’s former live-in girlfriend sought non-parent visitation.  The fact that this was a same sex couple made no difference.  The Court of Appeals held that the burden of proof was not on the mother, but on the person seeking visitation to prove that the fit parent’s decision to not allow visitation would substantially impair the child’s best interests.  This case had significant implications for non-parent visitation cases (no mater the sex of the parties) because it made it much more difficult to attain non-parent visitation.

 

In Doty-Perez v. Doty-Perez, a same sex spouse adopted four children subsequent to her marriage.  At the time, Arizona law did not provide for a same sex couple to adopt children, so her spouse was not an adoptive parent.  The couple intended to raise the children together, but the marriage eroded after the adoption and the couple divorced.  The non-parent spouse asked the trial court to declare her a legal parent.  The trial court denied that request because no presumption of legal parenthood exists in this situation.  Arizona law clearly states that the parental relationship exists between the adoptive parent and the child, not the adoptive parent’s spouse.  Obergfell (the United States Supreme Court case requiring the recognition of same sex marriage) does not require states to retroactively change adoptions.  The non-parent spouse then petitioned for non-parent visitation.  The Court of Appeals eventually held that Arizona’s non-parent visitation statute (A. R. S. § 25-409) does not provide for non-parent visitation for a child adopted by one spouse and not the other spouse (the statute specifically provides for non-parent visitation when one of the legal parents is deceased, the child’s legal parents are not parried to each other when the petition is filed, or a petition for divorce or legal separation of the parents is pending at the time the petition is filed).

 

In Turner v. Steiner, a different division of the Arizona Court of Appeals disagreed with the McLaughlin court.  In Turner, one spouse in a same sex couple became pregnant by artificial insemination.  The couple did not have a written agreement to co-parent the child, but their conduct appeared to support such an agreement.  The trial court held that the non-parent spouse was presumed to be a legal parent and the parent spouse could not rebut the presumption because of the implied agreement to co-parent the child.  The appellate court reversed, reasoning that Obergfell requires states to treat same-sex spouses the same as opposite-sex spouses, and not allowing a same-sex spouse to rebut the presumption because of an agreement (express or implied) when an opposite-sex parent would simply have to disprove biological parentage with a DNA test would be inconsistent with Obergfell.

 

This area of law is rapidly changing and further appellate decisions and possible changes in Arizona’s statutes will likely provide further developments during the next few years.

The Arizona Court of Appeals recently ruled that trial courts do not have the authority to choose a school for a child.  Courts may choose the parent who may make the decision, and courts may take into account in which school the parent would choose in making that decision, but the courts may not impose their own decision.  I wrote about that decision here: https://www.thomasamortonlaw.com/blog/item/94-family-courts-may-no-longer-decide-education-and-medical-decision-disputes-between-parents

 

Now the Court of Appeals has further limited trial courts’ authority to impose decisions on parents, recently ruling that the Family Court may not choose counselors for the children, prohibit discussing certain things with the children, and make other parenting decisions for the children.  The Court of Appeals again ruled that the Family Court may not make parenting decisions, but can only decide which parent will make them.

 

The parents married in 2004 and had three children. The parents divorced in 2010 with the parties having joint legal custody of the children, with Father having final legal decision-making authority for two children, including “L,” and Mother having final legal decision-making authority for the other child. The parties had equal parenting time.
 
In February 2013, Mother sent L to school wearing a skirt and carrying a book, Princess Boy, for his teacher to read to the class. Mother did not inform Father until after L arrived at school. Mother claimed that L had long preferred female-oriented items and would wear girls’ clothing at home. Father claimed to have no previous knowledge of this preference.  After L wore the skirt to school, Father made arrangements for L to begin therapy with L’s counselor.  Father claimed that Mother was pushing L to identify as female even though L’s counselor did not diagnose L with gender dysphoria.

 

The trial court ordered Father to provide L with therapy from specified providers, and that both parents not make certain parenting decisions, including discussion of certain topics with L. The Court of Appeals vacated those orders because no statutory authority enabled the court to direct the parenting decisions regarding therapy, or to impose parenting time limits that infringe the parents’ Constitutional rights to parent and engage in free speech.

 

The Court of Appeals made the following holdings: 

 

1.  The statute allowing the court to limit a parent’s authority does not allow the trial court to impose guidelines on  legal decision-making by appointing a specific therapist to treat child;

2.  The statute allowing the court to seek advice of professional personnel does not allow the trial court to appoint the child's longstanding, privately retained counselor to provide therapy or to grant judicial immunity to the counselor;

3.  The statute allowing the court to seek the advice of professional personnel does not allow the trial court to require an expert in gender issues to provide input to the parents, the child's therapist, and the court; 

4.  Father did not unreasonably oppose appointments of the therapist and expert; and

5.  The statute allowing the court to restrict parenting time rights does not allow the court to prohibit parents from speaking with a child about gender identification and or to provide the child with female-oriented items.
 
You can read the Court of Appeals decision here: https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2018/1%20CA-CV%2017-0048%20FC.pdf

 

This decision is part of a larger trend of the Arizona Court of Appeals limiting the Family Court’s authority to impose parenting decisions on parents and returning that authority to individual parents consistent with Arizona’s revised domestic relations statutes enacted in 2013.  Right or wrong, parents have the right to make their own decisions without a judge imposing decisions on them.  In 2013, family law lawyers all focused on the changes in the new statutes that appeared to enact a strong preference for joint legal decision making and equal time.  We were correct about that, but we all overlooked the change in the wording of the statute for legal decision making that ultimately resulted in a limitation on the Family Court’s authority to make decisions for parents.

Domestic violence is a factor in divorce with children and paternity cases in Arizona.  It can have a big impact on legal decision making (custody) and parenting time orders.  Significant domestic violence can be the most important factor in the Family Court’s determination.

 

If the court determines that there has been significant domestic violence between the parents or if there has been a significant history of domestic violence, it will not award joint legal decision making.  The Family Court judge must consider any domestic violence as contrary to the children’s best interest and must consider the safety and well-being of the children and victim of domestic violence of primary importance.  The court will consider a party’s history of harming or threatening to harm another person.  To determine whether a parent committed domestic violence, the court must consider all factors, including but not limited to findings from other courts, police reports, medical reports, Department of Child Safety records, domestic violence shelter records, school records, and witness testimony.

 

If the judge determines that a parent has committed an act of domestic violence against the other parent, the court must presume that joint legal decision making or sole legal decision making with the perpetrator of domestic violence is not in the children’s best interest.  The presumption does not apply if both parents committed an act of domestic violence.  A parent commits an act of domestic violence if he or she causes or attempts sexual assault or serious physical injury; causes another person to reasonably believe that serious physical injury to any person is imminent; or engages in behavior for which a court may issue a protective order for the other parent.  The court will consider the following factors to determine whether a parent rebutted the presumption against legal decision making: whether that parent demonstrated that sole or joint legal decision making in that parent or substantially equal parenting time is in the children’s best interest; whether that parent completed a batterer’s prevention program; whether that parent completed substance abuse counseling if the court determined that substance abuse counseling is appropriate; whether that parent completed a parenting class if the court determined that it is appropriate; whether a court has issued a protective order after a hearing if that parent is on probation, parole, or community supervision; and whether that parent has committed further acts of domestic violence.

 

If the court determines that a parent committed an act of domestic violence, that parent must prove that parenting time will not endanger the child or harm the child’s emotional development.  If the parent meets this burden, the court must place conditions on parenting time to protect the child and the other parent from harm.  The court may place the following conditions on parenting time: order that exchanges of the children take place in a protected place such as a police station; order that parenting time be supervised by an agency or an individual at the perpetrator’s expense; order the parent who committed domestic violence to complete an intervention program; order the parent who committed domestic violence to abstain from and not possess alcohol or drugs during and 24 hours before parenting time; prohibit overnight parenting time; require a bond from the parent who committed domestic violence for the child’s safe return; order that the address of the children and other parent be confidential; and impose any other condition that the judge deems necessary to protect the child, other parent, or any other household or family member.

 

The court may not order joint counseling between a victim and perpetrator of domestic violence and may request or order services from the Department of Child Safety.

 

Therefore, domestic violence can play a major role in a court’s determination of legal decision making and parenting time.  If you have domestic violence as an issue in your family law case, I can help you.

Arizona Family Courts have for many years resolved conflicts between parents who cannot agree on which school their children attend or which medical treatment their children receive.  Last month, the Arizona Court of Appeals put an end to the Family Court making legal decisions on behalf of children.

 

In Nicaise v. Sundaram, the father believed that the child was developmentally delayed and sought various treatments for the child.  The father also wanted to place the child in a public school with an IEP (Individualized Education Program).  Mother disagreed, opposed any treatment, and wanted to home school the child.  The mother and father had an extremely volatile relationship and were unable to agree on any of these issues.  The Family Court in Maricopa County held a trial and ruled that the child would receive various treatments and attend a public school with an IEP in place.

 

The Arizona Court of Appeals ruled that the trial court exceeded its jurisdiction and authority by making the parents’ decisions on treatment and education for them.  The statute regarding legal decision making (custody) authorizes the court to designate the parent who can make this sort of legal decision for a child, but does not give the court the authority to actually make the legal decision for the child.  “We find no statutory grant of authority for such decisions.  If the court determines that the parents cannot agree, the court must choose which parent shall decide. But the court cannot make the decision itself.”  The appellate court went on to say that the trial court may consider each parent’s proposed decisions in making its determination of which parent shall make the decision.

 

In reaching its decision, the Court of Appeals specifically departed from its earlier decision in Jordan v. Rea to the extent that the Jordan court ruled that judges may make substantive legal decisions for parents who are unable to agree.  The Arizona Court of Appeals decided Jordan in 2009, prior to when Arizona’s statutes regarding legal decision making changed in 2013.  

I often get questions like, “In what state should I file for custody, child support, etc.?”  Arizona has adopted the Uniform Child Custody Jurisdiction and Enforcement Act, along with most other states.  In order for Arizona to have jurisdiction over a child to establish a first custody order, Arizona must be the last state in which the child lived for six months.  For example, if a child lived in Arizona since birth until his or her ninth birthday, and then moved to California, Arizona would have jurisdiction over that child until the child had lived in California for six months, at which point California would have jurisdiction to enter a custody order for that child.  If the same child lived in California for a year and then moved back to Arizona, California would have jurisdiction over the child until the child lived in Arizona for six months, at which point jurisdiction would be in Arizona again. 

 

For children less than six months of age, jurisdiction lies in the state in which they lived from birth, until they move to another state for six months.  For example, if a child is born in Arizona, lives in Arizona for two months, and then moves to California, Arizona will have jurisdiction over that child until the child has lived in California for six months.

 

After a state’s court enters a custody order for a child, that state retains continuing, exclusive jurisdiction over that child as long as either the child or a parent still lives in that state, or that state’s court relinquishes jurisdiction because the child and a parent have moved to another state.  For example, if the parents of a child divorce in Arizona, the court in Arizona enters a custody order, the mother and the child move to California, and the father still lives in Arizona, Arizona still has exclusive, continuing jurisdiction over the child, even after the child has lived in California for over six months, unless the Arizona court relinquishes jurisdiction due to the move and other factors.  The California courts will not have jurisdiction to modify the Arizona custody order.

 

Arizona law provides exceptions to these jurisdictional rules, such as in emergency situations, but these are the general rules of child custody jurisdiction.

 

Jurisdiction for child support depends on other factors.  In order for a court to order a person to do something, such as pay child support, the court must have jurisdiction over that person, regardless of whether it has jurisdiction over the child.  Therefore, if a parent wants the court to order the other parent to pay child support, the court must have jurisdiction.  This usually means that the parent seeking child support must file in the state in which the other parent lives.  However, there are limited exceptions, mainly if the other parent enters the state and gets served, the state in which that parent received service will have jurisdiction, even though that parent lives in another state.  For example, if a parent who lives in California travels to Arizona and receives a summons and petition from a process server for a child support action in Arizona, the Arizona court has jurisdiction over that parent and can order that parent to pay child support.

 

If you have questions about child custody, legal decision making, parenting time, and child support jurisdiction, please contact Thomas A. Morton, PLLC for a consultation.

For many years, fathers in Arizona have not been treated fairly when their children were born out of wedlock.  Recently, the Arizona Court of Appeals changed that.  Children born out of wedlock in Arizona are in the sole care and custody of the mother until a court orders otherwise.  This makes sense because the maternity of a child is beyond question, while that is not the case with paternity.

 

However, Arizona has long had statutes that say that when a father has established paternity, he has a right to access to his child and that one parent may not deny access to the child to the other parent.  For years, however, courts have not held that these statutes mean that a mother of a child born out of wedlock for whom there is no custody order may not move a child out of state without a court order or the father’s consent.  Courts have allowed it because children born out of wedlock are in the sole custody, care, and control of the mother.

 

In April, 2017, the Arizona Court of Appeals changed that.  A father of a child born out of wedlock had established paternity by signing an acknowledgment of paternity with the mother and filing it with the Department of Economic Services.  He and the mother did not previously seek a court order regarding the child.  The mother then moved with the baby to Wisconsin without seeking a court order and without the father’s consent. 

 

The trial court ruled, and the Court of Appeals affirmed, that the father had established his paternity by signing and filing the acknowledgment of paternity with the mother.  Although the child was in the sole care and custody of the mother, the mother did not have the right to deny access to the child to the father because he had established paternity.  Here is the part that changes the way Arizona courts approach this issue: the court ruled that the mother wrongfully denied access to the child by moving the child out of state without first seeking a court order and without the father’s consent.  Therefore, the mother had to bring the child back to Arizona or face legal consequences.

 

For years, many fathers faced this situation having thought that the mother of their child could not just move their children to another state.  By the time they found out the truth, it was often too late.  Now, the Court of Appeals has taken the step of correctly holding that the mother of a child born out of wedlock whose paternity has been legally established cannot legally move the child to another state just because she is the mother.

 

The important distinction is that the parents of the child in this case had legally established paternity of the child.  Had the parents not established the father’s paternity of the child, the mother could have legally moved the child out of Arizona without a court order or the father’s consent.  In that case it would have been possible for the judge to order the mother to return the child to Arizona if the judge found that a return to Arizona was in the child’s best interests because Arizona courts would still have jurisdiction over the child.  However, it would not have been strictly required to order the mother to return the child to Arizona and the mother would not have been breaking the law.

 

The lesson from this case is that father must establish paternity without delay.  The child in this case was only two months old.  Had the father not established his paternity of the child, this case may have gone a very different way.  Besides establishing paternity (which parties can only do with a court order or by signing and filing an acknowledgment of paternity), the parents should seek an order for legal decision making, parenting time, and child support, rather than having the constant conflict that not having an order causes.  There are plenty of other reasons to seek orders, but they are a subject for another blog post.  If mothers and fathers need help with these issues, my firm offers a consultation at a discounted rate.  Thanks for reading!

 

You can read the entire Court of Appeals decision here:http://www.leagle.com/decision/In%20AZCO%2020170413015/GUTIERREZ%20v.%20FOX

I recently finished the report to the court on my most recent court appointed advisor assignment.  A court appointed advisor is someone whom the family court appoints to investigate the facts in a custody/legal decision making/parenting time dispute.  It usually involves allegations of abuse, neglect, drug use, domestic violence, or some combination of these factors.  The court appointed advisor is the court’s eyes and ears, who investigates the case, reports to the court, and makes a recommendation.  The court ultimately makes the decision.

 

The advisor has the authority to retrieve medical, school, criminal, department of child safety, or any other records. He or she interviews the parents and any other people whom the advisor deems appropriate to interview.  The advisor inspects the parents’ homes and may interview or observe the children.

 

The instructors in my training said that both parents will act like they love me at first, but will both be angry with me if I do a good job.  This latest case was no exception.  One parent agreed with my recommendations, although my recommendations were not one-sided, but appeared to be angry with me and would not even look at me.  The other parent, however, denounced me to the court, claimed that I had not done my job, claimed that I am biased, and sat in court glaring at me.

 

This was still a rewarding experience because, unlike other pro bono cases, I am not an advocate for one of the adults.  My only concern is to gather and give information to the judge and I can truly focus on the best interests of the child.

Here are some things to avoid and some things to do when you have a custody/legal decision making/parenting time battle with the other parent of your children.

 

 

1. Send angry text messages or email to the other parent.  Anything you write that is inappropriate or makes you look violent, threatening, reckless, etc. will hurt your case if the judge sees it and you can bet that the other parent will show it to the judge.

 

2. Post anything dumb on social media.  The same goes for social media.  Also, portraying a party lifestyle, or posting pictures of guns, or posting about the new person you are dating can also hurt your case.  In fact, don’t use social media at all.

 

3. Say anything dumb.  You never know if someone is recording what you are saying.

 

4. Do anything dumb.  In my career, I have seen all kinds of dumb things that people get caught doing while they are fighting for their children.  Don’t commit crimes, drive drunk, do drugs, disappear, hide the children, make death threats, or do anything else that will hurt your case if the judge finds out about it.

 

5. Call the other parent incessantly or in the middle of the night.  Don’t make yourself look like a stalker, harasser, or abuser.

 

6. Put your children in the middle of the conflict with the other parent.  This almost always backfires.  More importantly, it is very bad for your children.

 

7. Allow the other parent to push you around.  This doesn’t mean that you should act aggressively or be unreasonable.  However, don’t move out of the house just because the other parent told you to move out.  This makes the other parent the de facto primary residential parent.  Don’t put up with the other parent withholding the children from you.  If the other parent withholds the children and you file with the court right away, you will get to see your children sooner.  If you put up with it for a long time, then you don’t look like your children are your priority when you do get around to filing with the court.

 

8. Be unreasonable.  Three quarters of getting what you want in Family Court is being reasonable.  Don’t withhold the children from the other parent unless you have a very good reason. Most often, a very good reason is drugs or severe abuse.  Don’t take away the car that the other parent is driving or remove his or her insurance.

 

9. Wait.  There is little advantage to filing first, but you should not put off filing with the court.  The sooner the court establishes your rights the better.  If the other parent is withholding the children or allowing very little contact with the children, the sooner yo file the sooner it will stop.

 

10. Give up.  You have a long-term goal.  It may seem like you are losing now, but you will not lose in the long run if you do the right things and don’t give up.

 

 

1. Assume the judge will see anything you write or post.  Only write and post things that you will not be afraid to explain to the judge.

 

2. Assume the judge will hear anything you say.  Only say things that you will not be afraid to explain to the judge.

 

3. Communicate in writing with the other parent as much as possible.  People can lie about what you said, but they can’t lie about what you wrote.

 

4. Remain civil with the other parent.  Not being civil hurts your case.  Being civil helps your case.  More importantly, this is what is best for your children.

 

5. Cooperate with the other parent to the extent possible.  Show the judge that you are the reasonable, cooperative parent.

 

6. Focus on the best interest of your children, not on what is best for you or how mad you are at the other parent.  This is the most important step in not screwing up your children during your legal dispute with the other parent.  It will also help your case.

 

7. Send civil, detailed emails to the other parent regarding decisions that the two of you must make for your children.  Show the judge that you can co-parent and make responsible decisions.  If the other parent responds in kind, you have begun a good co-parenting relationship with the other parent, which is good for your children.  If the other parent refuses to respond or responds inappropriately, you have created evidence favorable to your case.

 

8. File quickly.  Waiting usually hurts you.

 

9. Hire an attorney.  This may sound self-serving, but you don’t do this every day. An attorney does do this every day.  An attorney knows the law, knows the judges, knows the procedure, knows the ins and outs of custody battles, knows what is persuasive, and can look at your case with an unemotional eye.  Your children are worth it.

 

10. Try to settle.  The two people in the whole world in the best position to make decisions in the best interest of your children are you and the other parent.  If you and the other parent cannot make a decision on your own, a stranger who doesn’t know you, the other parent, or your children, but who happens to be a judge, will listen to two or three hours of evidence and make a decision for you.  It might be a decision you hate.

I always try to settle my cases in family court and one of the best ways to do that is through mediation.  If the parties settle, they may not be completely happy with the outcome, but they controlled the outcome and avoided a decision from a judge, who may have given them an outcome that they hate.  As I tell my clients in legal decision making (custody) and parenting time (visitation) cases, the two people in the whole world in the best position to make a decision in the best interests of the children are the mother and father.  If the mother and father cannot come to a decision together, a stranger who happens to have been appointed to be a judge (and who does not know the mother, father and children) will listen to about three hours of evidence and impose a decision on them. 

 

Settlement is better.  One good way to work towards a settlement is to use a mediator.  A mediator is a neutral person who can give both sides an unbiased perspective and help them reach a settlement.  One way to mediate a case with children is a parenting conference.  The judge will appoint a parenting conference officer who will hold a conference with both parties for about two to three hours.  The conference officer will try to get the parties to work out a settlement regarding the children.  If the parties are unable to reach an agreement, the officer will make a limited written report to the judge about his or her observations during the conference and may make recommendations to the judge regarding the children.  The officer will report any partial agreements.  Each party must pay $300.00 for the parenting conference, but the judge may order that the parties can make payments.  Attorneys do not attend the parenting conference. The conference officer may interview the children.

 

Another way to mediate is for the judge to refer the parties to Alternative Dispute Resolution (“ADR”) for a settlement conference.  The parties’ attorneys attend this conference with their clients and the conference will include all issues before the family court.  The mediator in this case is an attorney appointed as a judge pro tempore with the authority to enter orders.  The parties do not pay for this conference.  If the parties reach a settlement the judge pro tem can enter the agreement on the record and approve it as a final order of the court.  If they do not reach an agreement, the judge pro tem simply reports to the judge that the parties did not reach an agreement.  A good judge pro tem can get a case settled that the parties did not think would settle.  ADR settlement conferences usually last about half a day.

 

Finally, the parties can go to private mediation.  Private mediation is expensive and the mediator does not have any authority because the court did not appoint the mediator.  The mediator generally follows the same process as the ADR judge pro tempore and may help the parties draft a settlement agreement if they reach an agreement.  Private mediation can be very helpful in settling a case when a parenting conference and ADR are not available. 

 

Anyone in family court in Maricopa County, Arizona should at least try to reach a settlement with the other party.  Mediation can be very helpful towards reaching a settlement.