Filed under: Arizona Family Law, Arizona Family Law Attorney, Arizona Family Law Firm, Arizona Rules of Family Law Procedure, Custody, Discount Arizona Family Firm, Discount Arizona Family Lawyer, Discovery, Dissolution, Divorce, Divorce Laws, Family Law Attorney, Family Law Documents, General Family Law, Maricopa County, Mental Evaluation, Phoenix Family Law, Phoenix Family Law Attorney, Phoenix Family Law Firm, Physical Evaluation, Pleadings, Rule 63
Rule 63, Arizona Rules of Family Law Procedure, (“ARFLP”) provides authorization, in certain situations, for the court to order that a party to a Family Court action submit to a physical, mental or vocational evaluation.
Rule 63, expresses that, with regard to Arizona Family Law Cases, when the mental, physical, or vocational condition of a party or any other person is in controversy, the court may order that person to submit to a physical, mental, or vocational evaluation by a designated expert or to produce for evaluation the person in the party’s custody or legal control.
The order may be made only on motion for good cause shown and upon notice to the person to be evaluated (unless the person to be evaluated is a minor child of one or both of the parties), and to all parties and shall specify the time, place, manner, conditions, and scope of the evaluation and the person or persons by whom it is to be made. The person to be evaluated shall have the right to have a representative present during the evaluation, unless the presence of that representative may adversely affect the outcome of the evaluation.
Rule 63 can be an invaluable mechanism in custody cases where the physical or mental health of one or more of the parties is in question. Meaning that in some way, the requesting party believes that another’s ability to “parent” because of mental or physical defects is paramount to the court’s custody determination. This Rule should not be employed in all cases, nor used to simply harass a party. There are very limited and specific reasons why requests should be made under Rule 63. For more information on whether your case warrants relief under Rule 63, it is strongly suggested that you meet with an experienced Arizona Family Lawyer prior to filing such request.
Finally, Rule 63 provides very specific requirements both procedurally and timing that must be met in using or suggesting evaluators to conduct such examinations. For this reason it is again urged that prior to making this request with the Court, that one meet with an experienced Arizona Family Law Attorney.
Having used Rule 63 many times and in many cases, Ariano & Reppucci, PLLC can assist during your free consultation in determining whether your desired Rule 63 request is reasonable. Ariano & Reppucci, PLLC, Arizona’s 24 Hour Family Law Firm can be contacted at 602-515-0841 or by visiting www.familyattorneys-arizona.com
Filed under: 25-404, 25-411, Arizona Family Law, Arizona Family Law Attorney, Arizona Family Law Firm, Arizona Rules of Family Law Procedure, Discount Arizona Family Firm, Discount Arizona Family Lawyer, Family Law Attorney, Family Law Documents, General Family Law, Maricopa County, Phoenix Family Law, Phoenix Family Law Attorney, Phoenix Family Law Firm, Pleadings, Temporary Order, Temporary Orders Arizona
In Arizona, parties to many family law actions can file for temporary orders with the court. Because court calendar’s are often over loaded, it can take several months for a final trial to take place. Therefore, temporary orders requests will allow the parties to an action some stability in the interim by having the court set temporary orders which will have the same force and affect as a final order of the court until later modified, if at all.
A.R.S. §§ 25-404 and 25-411 governs temporary orders requests in Arizona. In particular, 25-404 states:
A party to a custody proceeding may move for a temporary custody order. This motion must be supported by pleadings as provided in section 25-411. The court may award temporary custody under the standards of section 25-403 after a hearing, or, if there is no objection, solely on the basis of the pleadings.
B. If a proceeding for dissolution of marriage or legal separation is dismissed, any temporary custody order is vacated unless a parent or the child’s custodian moves that the proceeding continue as a custody proceeding and the court finds, after a hearing, that the circumstances of the parents and the best interest of the child require that a custody decree be issued.
C. If a custody proceeding commenced in the absence of a petition for dissolution of marriage or legal separation is dismissed, any temporary custody order thereby is vacated.
The above statute sets out the very basics for when temporary orders may be requested. However, 25-411 sets forth in detail how a requesting party should request temporary orders with the court and what items must be included in such request.
Temporary orders can be a tricky and often times stressful subject for pro per (unrepresented) parties to grasp. Therefore, it is recommended that before filing for temporary orders with the court, you first meet with an experienced Arizona discount Family Law Attorney at Ariano & Reppucci, PLLC.
For more information on this or any other Arizona family law matter, please contact, the author at 602-515-0841 or visit other author blog posts at www.familyattorneys-arizona.com.
Filed under: A.R.S. 25-407, Access to Records, Arizona Family Law, Arizona Family Law Attorney, Arizona Family Law Firm, Arizona Rules of Family Law Procedure, Best Interest, Family Law Attorney, Family Law Documents, General Family Law, Phoenix Family Law, Phoenix Family Law Attorney, Phoenix Family Law Firm, Pleadings, Public Access
A.R.S. 25-407 states in relevant text:
A. Custody proceedings shall receive priority in being set for hearing.
B. The court may tax as costs the payment of necessary travel and other expenses incurred by any person whose presence at the hearing the court deems necessary to determine the best interest of the child.
C. The court, without a jury, shall determine questions of law and fact. If it finds that a public hearing may be detrimental to the child’s best interest, the court may exclude the public from a custody hearing, but may admit any person who has a direct and legitimate interest in the particular case or a legitimate educational or research interest in the work of the court.
D. the court finds that to protect the child’s welfare, the record of any interview, report, investigation, or testimony in a custody proceeding should be kept secret, the court may then make an appropriate order sealing the record.
Often times client’s are concerned that the highly sensitive aspects of their case will become or are at the public’s disposal for review. The fact is, that without just cause, our legal system permits open forum’s for viewing and review of pleadings, whether nor not the matter involves custody of a child. However, if you are representing yourself and belief that public access to some or all of the court record will adversely effect your child’s best interests, then you can use the above statute as a basis in your request to the Court that your matter be sealed.
Filed under: Arizona Family Law, Arizona Family Law Attorney, Arizona Family Law Firm, Arizona Rules of Family Law Procedure, Default Rules, Disclosure, Discovery, Divorce, Divorce Laws, Early Resolution Management Conference, ERC, Family Law Attorney, Family Law Documents, General Family Law, Resolution Management Conference, RMC, Settlement
An Early Resolution Conference (ERC) is generally scheduled when both parties are unrepresented. The ERC is conducted by a conference officer, and during the time set (usually up to 2 hours), the parties and the conference officer discuss which issues have been agreed and which are still in dispute. If all issues are agreed, the conference officer may be able to write up the agreement and take it to a judge to sign and finalize the divorce. If there are still disputed issues, the conference officer will provide a date that the parties return to court to see the judge for a trial.
A Resolution Management Conference (RMC) is generally scheduled when one or both parties are represented by counsel. The RMC is conducted by the judge assigned to the case, and usually lasts 15-30 minutes. This is not a time to present evidence and testimony; rather, it is a time to let the judge know whether or not there are agreements, and to decide what type of services might be appropriate to move the case forward (e.g. mediation, settlement conference, etc.). The judge will generally set a trial date as well as the deadlines for pretrial activities.
Filed under: 25-319, A.R.S. 25-327, Alimony, Arizona Family Law, Arizona Family Law Attorney, Arizona Family Law Firm, Arizona Rules of Family Law Procedure, Family Law Attorney, Family Law Documents, General Family Law, Maricopa County, Modification, Modification of Spousal Maintenance, Phoenix Family Law, Phoenix Family Law Attorney, Phoenix Family Law Firm, Post Judgment, Reduced Alimony, Spousal Maintenance
For some time now, there has been a debate in Arizona regarding the purpose of spousal maintenance. The positions are; 1) indefinite vs. 2) rehabilitative maintenance. There are several Arizona cases which speak directly to this issue, in my opinion, some are more useful than others. See Lindsay v. Lindsay, 115 Ariz. 322, 565 P.2d 199 (1979); Schroeder v. Schroeder, 161 Ariz. 316, 778 P.2d 1212 (1989).
The above referenced cases are useful in fleshing out reasoning for why courts in recent times have and continue to appear to lean in the direction of fixing duration of spousal maintenance orders in order to require a receiving spouse to attain some level of financial independence.
In fact, later cases have defined rehabilitative maintenance as that “which is awarded for a short duration with specific purpose of enabling job training or other means of entering or advancing in the work force. See Steinle v. Van Dyke, 183 Ariz. 268, 902 P.2d 1372 (1995).
It must be noted that although the trend may be for rehabilitative maintenance orders, the fact is that A.R.S. 25-319 takes into consideration several factors, which if demonstrated, may be used by a party seeking maintenance to attack the rehabilitative theory. One such factor being because of the age of the receiving spouse, he/she cannot ever seek financial independence, and therefore could never be “rehabilitated.”
It clear that not all spousal maintenance orders serve identical values and each case is unique by its own set of facts and circumstance. Therefore, if you are seeking establishment, modification, or termination of spousal maintenance I would strongly suggest that you meet with an experienced Arizona family law attorney who can help you navigate this jungle.
Filed under: A.R.S. 25-403.05, Access to Records, Arizona Family Law, Arizona Family Law Attorney, Arizona Family Law Firm, Arizona Rules of Family Law Procedure, Family Law Attorney, Family Law Documents, General Family Law, Maricopa County, Parenting Plan, Phoenix Family Law, Phoenix Family Law Attorney, Phoenix Family Law Firm, Post Judgment, Public Access
Recent statutory changes now mandate that every joint custody parenting plan include specific notification required by A.R.S. § 25-403.05. In full test, this statutory requirement states:
A. Unless the court finds that there is no significant risk to the child and states its reasons in writing, the court shall not grant a person sole or joint physical or legal custody of a child or unsupervised parenting time with a child if the person:
1. Is a registered sex offender.
2. Has been convicted of murder in the first degree and the victim of the murder was the other parent of the child who is the subject of the order. In making its finding, the court may consider, among other factors, the following:
(a) Credible evidence that the convicted parent was a victim of domestic violence, as defined in section 13-3601, committed by the murdered parent.
(b) Testimony of an expert witness that the convicted parent suffered trauma from abuse committed by the murdered parent.
B. A child’s parent or custodian must immediately notify the other parent or custodian if the parent or custodian knows that a convicted or registered sex offender or a person who has been convicted of a dangerous crime against children as defined in section 13-705 may have access to the child. The parent or custodian must provide notice by first class mail, return receipt requested, by electronic means to an electronic mail address that the recipient provided to the parent or custodian for notification purposes or by other communication accepted by the court.
The important provision that should be included now in all joint custody parenting plans is the notification requirement listed in section “B” above.
For more information on other recent family law updates and/or any other Arizona family law matter, please contact Ryan M. Reppucci or Arizona & Reppucci, PLLC at 602-515-0841
Filed under: Arizona Family Law, Arizona Family Law Attorney, Arizona Family Law Firm, Arizona Rules of Family Law Procedure, Child Support, Family Law Attorney, Family Law Documents, General Family Law, Phoenix Family Law, Phoenix Family Law Attorney, Phoenix Family Law Firm, Pleadings
Under Arizona law, Arizona’s Child Support Guidelines define the factors and method for the calculation of child support. The Guidelines consideration the gross income of each of the parents and does not include the income of a new spouse. Generally, the Guidelines determine income based upon a 40-hour workweek, not overtime. Other factors in determining child support are day care expenses, health insurance, whether children are older than 12, the visitation that each parent has with the child, and any special needs that a child may have that require out of pocket expenses from either parent.
Unlike child custody, visitation, or any other issues surrounding a divorce or separation, child support is determined by a simple formula. But that is not to say that the system is perfect and you could find yourself in a situation in which you are paying too much or receiving too little. That is why at Ariano & Reppucci, PLLC we take special care with each client analyzing all of the factors to make sure our clients pay/receive the amount of support they are entitled.
If you need to establish child support, or want to enforce a support obligation, our office can help you through the legal procedures to enforce your award, collect past due child support and ensure that future child support is collected promptly. Please call us today.
Filed under: Arizona Family Law, Arizona Family Law Attorney, Arizona Family Law Firm, Arizona Rules of Family Law Procedure, Best Interest, Custody, Family Law Attorney, Family Law Documents, General Family Law, Grandparents Rights, Great-Grandparents Rights, Maricopa County, Phoenix Family Law, Phoenix Family Law Attorney, Phoenix Family Law Firm, Pleadings
|The superior court may grant the great-grandparents of the child reasonable visitation rights on a finding that the great-grandparents would be entitled to such rights as a grandparent if the great-grandparents were grandparents of the child.
In determining the child’s best interests for great-grandparents visitation rights, the court shall consider all relevant factors, including:
1. The historical relationship, if any, between the child and the person seeking visitation.
2. The motivation of the requesting party in seeking visitation.
3. The motivation of the person denying visitation.
4. The quantity of visitation time requested and the potential adverse impact that visitation will have on the child’s customary activities.
5. If one or both of the child’s parents are dead, the benefit in maintaining an extended family relationship
If logistically possible and appropriate the court shall order visitation by a grandparent or great-grandparent to occur when the child is residing or spending time with the parent through whom the grandparent or great-grandparent claims a right of access to the child. If a parent is unable to have the child reside or spend time with that parent, the court shall order visitation by a grandparent or great-grandparent to occur when that parent would have had that opportunity.
A grandparent or great-grandparent seeking to obtain visitation rights must petition for these rights in the same action in which the parents had their marriage dissolved or in which the court determined paternity or maternity, or by a separate action in the county where the child resides if no action has been filed or the court entering the decree of dissolution or determination of paternity or maternity no longer has jurisdiction.
Finally, all visitation rights granted automatically terminate if the child has been adopted or placed for adoption. If the child is removed from an adoptive placement, the court may reinstate the visitation rights. This subsection does not apply to the adoption of the child by the spouse of a natural parent if the natural parent remarries.
For more information on this or any other Arizona family law matter, contact the experienced family law firm of Ariano & Reppucci, PLLC.
Filed under: 25-329, Alimony, Arizona Family Law, Arizona Family Law Attorney, Arizona Family Law Firm, Arizona Rules of Family Law Procedure, Child Support, Consent Decree, Custody, Dissolution, Divorce, Divorce Laws, Family Law Attorney, Family Law Documents, General Family Law, Phoenix Family Law, Phoenix Family Law Attorney, Phoenix Family Law Firm, Response, Settlement, Spousal Maintenance, Waiting Period
The simple answer is because your elective officials have created a law that says you have to. Arizona Revised Statute § 25-329 states:
“The court shall not consider a submission of a motion supported by affidavit or hold a trial or hearing on an application for a decree of dissolution of marriage or legal separation until sixty days after the date of service of process or the date of acceptance of process.”
To put the above provision into context, the Court simply cannot finalize a decree of dissolution of marriage until at least sixty (60) days from the date in which the Respondent was served, either by acceptance of service, signature return receipt confirmation, personal service (process server) or through publication.
It is the opinion of this writer that this requirement has been put into place for two specific reasons. First, the court calendars are simply too overloaded to deal with matters within the first sixty (60) days after service upon the Respondent. Second, public policy is for the promotion of harmonious marital relations. That is by requiring parties to wait sixty (60) days before finalizing their divorce, the Court is affording spouses an opportunity to “cool” off to determine whether reconciliation can be reached in hopes that the marriage may be salvaged.
It’s worth noting that although the Court cannot finalize your divorce until at least the sixty (60) day period is met, the parties remain free to reach binding agreements pursuant to Rule 69, Arizona Rules of Family Law Procedure during this “waiting” period. These agreements are per se enforceable as a valid contract between the parties. Therefore, although you have to “wait” to make your divorce final, you are free to work out arrangements for property distribution, spousal maintenance, child custody, and child support during this period.
If you and your spouse desire to reach formal agreement(s) during the “waiting” period it is strongly suggested that you meet with and have an experienced family law attorney draft codify your desires in accord with Rule 69.
Filed under: 25-411, Arizona Family Law, Arizona Family Law Attorney, Arizona Family Law Firm, Arizona Rules of Family Law Procedure, Custody, Family Law Attorney, Family Law Documents, General Family Law, Modification, Phoenix Family Law, Phoenix Family Law Attorney, Phoenix Family Law Firm, Pleadings, Post Judgment
A.R.S. 25-411 governs custody modification in Arizona. In particular, the statute states that:
A person shall not make a motion to modify a custody decree earlier than one year after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child’s present environment may seriously endanger the child’s physical, mental, moral or emotional health. At any time after a joint custody order is entered, a parent may petition the court for modification of the order on the basis of evidence that domestic violence, spousal abuse or child abuse occurred since the entry of the joint custody order.
With this in mind, six months after a joint custody order is entered, a parent may petition the court for modification of the order based on the failure of the other parent to comply with the provisions of the order. There are other requirements to be factored when one parent is a member of the military or armed forces.
The court may modify an order granting or denying parenting time rights whenever modification would serve the best interest of the child, but the court shall not restrict a parent’s parenting time rights unless it finds that the parenting time would endanger seriously the child’s physical, mental, moral or emotional health.
To modify any type of custody order a person shall submit an affidavit or verified petition setting forth detailed facts supporting the requested modification and shall give notice, together with a copy of the affidavit or verified petition, to other parties to the proceeding, who may file opposing affidavits. The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the pleadings, in which case it shall set a date for hearing on why the requested modification should not be granted.
The court shall assess attorney fees and costs against a party seeking modification if the court finds that the modification action is vexatious and constitutes harassment.
In addition to the time restrictions listed above, there may be other restrictions relevant to your case that must be met prior to filing a custody modification request. For instance, many custody orders will require that in addition to the proscribed time periods, that the parties submit to some sort of mediation and/or counseling before they bring a custody modification request before the court.
If contested, custody modification matters can be stressful and often times as bad if not worse than the initial custody determination. Therefore, it is strongly suggested that if you are a party to a modification matter or desire modification yourself that you contact and speak with an experienced Arizona family law attorney.