When Can I Modify Custody In Arizona?

 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.

Preparing for my family law evidentiary hearing / trial in Arizona.

Being that each and every case in and of itself is unique, it should be apparent that trial preparation will vary from case to case. With this said, it is extremely important that the parties pay careful attention to the court’s minute entry that set the trial. This minute entry will not only provide you with the trial date, time, and location, but will also serve as a timeline of events. Particularly, parties should pay close attention to what type of documents your judge request be filed with the court and/or exchanged with the opposing party. Furthermore, the parties should pay careful attention to relevant deadlines regarding these filings and exchanges.

Many time when opposing a pro se (self represented) party I do not receive documents and/or filings in accord with the outlined schedule of the court. This can lead to problems for the offending party. When a party that I oppose fails to comply with the court schedule for document exchange and/or filing, I am left with no choice but to object to any piece of evidence and/or item not properly filed or disclosed in accord with the courts trial setting minute entry.

Nothing is more frustrating to the pro se client than preparing their case knowing they are opposing a represented party  and then not being able to put submit anything into evidence, no matter how relevant, all because of some procedural technicality.

It is at least worth noting that the above outlined scenario I have been privy to see. However, generally the trial court judge or commissioner will be more liberal and understanding of a pro se party. However, even if you are afforded the most sympathetic of judges or commissioners, if you blatantly ignore the courts trial setting minute entry you are greatly minimizing your chances of success at the evidentiary hearing.

The thought of an evidentiary hearing or trial can be stressful. In efforts then to minimize this stress and increase your probability of success in your matter, it is highly suggested that if a evidentiary hearing or trial has been set in your case that you contact an experienced Arizona family law attorney or the experienced Phoenix Family based law firm of Ariano & Reppucci, PLLC

Modification of Spousal Maintenance in Arizona

If you have a current Spousal Maintenance order in place that is modifiable per the terms of a validly entered decree and either your income has decreased or the receiving parties income has increased, you may be entitled to modification or reduction of the current maintenance amount.

In Arizona, maintenance modifications are governed by A.R.S. § 25-327. In particular, any decree respecting maintenance or support may be modified or terminated only on a showing of changed circumstances that are substantial and continuing except as to any amount that may have accrued as an arrearage before the date of notice of the motion or order to show cause to modify or terminate.

Modifications and terminations are effective on the first day of the month following notice of the petition for modification or termination unless the court, for good cause shown, orders the change to become effective at a different date but not earlier than the date of filing the petition for modification or termination.

Often times, parties who are obligated to pay support will seek modification upon lose of employment. Mere loss of employment however, if only temporary may not be a sufficient reason to seek modification because in such circumstance, the change may possibly not be deemed substantial and continuing.

There are many factors that can be used to demonstrate that a change in circumstance is substantial and continuing and thus would warrant a modification and/or reduction of a maintenance obligation. If you believe that you may be entitled to a modification and/or reduction of your current support obligation it is suggested that you contact an experienced Arizona family law attorney to better determine whether by law you are actually entitled to such reduction based upon your particular circumstance.

Order of Protections in Arizona

In Arizona, in deciding the merits of petitions for orders of protection, the Court must look to A.R.S. § 13-3602 for guidance. In relevant text, in determining the merits of an order of protection, the court shall review the petition, any other pleadings on file and any evidence offered by the plaintiff, including any evidence of harassment by electronic contact or communication, to determine whether the orders requested should issue without further hearing.

            The court shall issue an order of protection if the court determines that there is reasonable cause to believe any of the following:

1. The defendant may commit an act of domestic violence.

2. The defendant has committed an act of domestic violence within the past year or within a longer period of time if the court finds that good cause exists to consider a longer period. For the purposes of determining the period of time, any time that the defendant has been incarcerated or out of this state shall not be counted. If the court denies the requested relief, it may schedule a further hearing within ten days, with reasonable notice to the defendant.

            Once a court issues an order of protection, the court may do any of the following:

1. Enjoin the defendant from committing a violation of one or more of the offenses included in domestic violence.

2. Grant one party the use and exclusive possession of the parties’ residence on a showing that there is reasonable cause to believe that physical harm may otherwise result. If the other party is accompanied by a law enforcement officer, the other party may return to the residence on one occasion to retrieve belongings. A law enforcement officer is not liable for any act or omission in the good faith exercise of the officer’s duties under this paragraph.

3. Restrain the defendant from contacting the plaintiff or other specifically designated persons and from coming near the residence, place of employment or school of the plaintiff or other specifically designated locations or persons on a showing that there is reasonable cause to believe that physical harm may otherwise result.

4. If the court finds that the defendant is a credible threat to the physical safety of the plaintiff or other specifically designated persons, prohibit the defendant from possessing or purchasing a firearm for the duration of the order. If the court prohibits the defendant from possessing a firearm, the court shall also order the defendant to transfer any firearm owned or possessed by the defendant immediately after service of the order to the appropriate law enforcement agency for the duration of the order. If the defendant does not immediately transfer the firearm, the defendant shall transfer the firearm within twenty-four hours after service of the order.

5. If the order was issued after notice and a hearing at which the defendant had an opportunity to participate, require the defendant to complete a domestic violence offender treatment program that is provided by a facility approved by the department of health services or a probation department or any other program deemed appropriate by the court.

6. Grant relief that is necessary for the protection of the alleged victim and other specifically designated persons and that is proper under the circumstances.

7. Grant the petitioner the exclusive care, custody or control of any animal that is owned, possessed, leased, kept or held by the petitioner, the respondent or a minor child residing in the residence or household of the petitioner or the respondent, and order the respondent to stay away from the animal and forbid the respondent from taking, transferring, encumbering, concealing, committing an act of cruelty or neglect in violation of section 13-2910 or otherwise disposing of the animal.

            At any time during the period during which the order is in effect, a party who is under an order of protection or who is restrained from contacting the other party is entitled to one hearing on written request. No fee may be charged for requesting a hearing. A hearing that is requested by a party who is under an order of protection or who is restrained from contacting the other party shall be held within ten days from the date requested unless the court finds good cause to continue the hearing. If exclusive use of the home is awarded, the hearing shall be held within five days from the date requested. The hearing shall be held at the earliest possible time.

            If you have been served with or seek an order of protection against another person and a hearing has been scheduled it is important that you meet with an experienced Arizona attorney on the matter. An attorney will understand what evidence and/or other items need to be presented at an order of protection hearing to either compel the court to uphold a valid request or quash a request that lacks merit.

            For more information on this or any other family law matter, contact the experienced Phoenix, Arizona based law firm of Ariano & Reppucci, PLLC.

January, National Divorce Month?

                Today’s blog is not dedicated normal legal insight. If you are looking to be legally enlightened you should stop reading this article now. I my normal quest to keep abreast of legal issues nationally, I came across an article  proclaiming, of all things, “January is National Divorce Month.” The article declares that each year divorce professionals notice a spike  in divorce inquiries during the month of January. Personally, I believe this proclamation to be a bold statement mainly because no evidence is presented to corroborate such finding other than “couples want to wait until after the holiday season”.

            Lets assume for a moment that this notion is true, that in fact January as whole does yield the most amount of divorce inquiries. Why then could this be? Yes, possibly people do want to wait until the holidays are over. Even more, as oddly as it may seem maybe these are “New Year’s Resolutions for some? If this proposition is true, I am not sure that you or I will ever know the answer.

            However, as a practicing family law attorney I have compiled a bit a data of my own to determine  if my divorce inquiries have  historically risen in the month of January. Unfortunately or fortunately, however you may view the situation, my findings do not support the  assertion that divorce inquiries increase  in the month January. Oddly enough, what I did find however was an increasing trend of related inquires during tax season. I without any substantive evidence to support my position, my theory is that this increase is directly attributable to parties receiving tax refunds and thus having a disposable income source to retain an attorney. Although these findings are of course circumstantial in nature I propose that the correlation suggested is much more plausible than that offered for the alleged basis in the spike of inquires during the month of January.

            You be the judge……………………………………

Sole or Joint Custody in Arizona

In Arizona, Sole and Joint Custody is determined by A.R.S. 25-403.01 among other statutory sections.

In awarding child custody, the court may order sole custody or joint custody. It should be noted that the Court does not create a presumption in favor of one custody arrangement over another. The court in determining custody shall not prefer a parent as custodian because of that parent’s sex.

The court may issue an order for joint custody over the objection of one of the parents if the court makes specific written findings of why the order is in the child’s best interests. In determining whether joint custody is in the child’s best interests, the court shall consider the factors prescribed in section 25-403, subsection A and all of the following:

1. The agreement or lack of an agreement by the parents regarding joint custody.
2. Whether a parent’s lack of agreement is unreasonable or is influenced by an issue not related to the best interests of the child.
3. The past, present and future abilities of the parents to cooperate in decision-making about the child to the extent required by the order of joint custody.
4. Whether the joint custody arrangement is logistically possible

Again, the above factors are those that the court must look to in addition to other relevant factors. For a further determination of what other factors are relevant to the court awarding joint custody, please speak with an experienced Arizona family law attorney that can guide you through the provisions of A.R.S. 24-403.

In the alternative, it must be noted that the court may issue an order for joint custody of a child if both parents agree and submit a written parenting plan and the court finds such an order is in the best interests of the child. The court may order joint legal custody without ordering joint physical custody.

For more detailed explanation of this or any other Arizona family law matter, please contact the experienced Arizona Family Law Attorneys at the Law Firm of Ariano & Reppucci, PLLC.

Visitation Rights of Grandparents and Great – Grandparents in Arizona

A.R.S. 25-409 governs visitation rights of grandparents and great – grandparents of a child. In particular, a superior court may grant the grandparents of the child reasonable visitation rights to the child during the child’s minority on a finding that the visitation rights would be in the best interests of the child if any of the following are true:

1. The marriage of the parents of the child has been dissolved for at least three months.

2. A parent of the child has been deceased or has been missing for at least three months. A parent is considered to be missing if the parent’s location has not been determined and the parent has been reported as missing to a law enforcement agency.

3. The child was born out of wedlock.

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.

Parental Access to Records of Child

In Arizona, parental access to records of children is governed by A.R.S. 25-403.06. In relevant text, 25-403.06 states:

A. Unless otherwise provided by court order or law, on reasonable request both parents are entitled to have equal access to documents and other information concerning the child’s education and physical, mental, moral and emotional health including medical, school, police, court and other records directly from the custodian of the records or from the other parent.

B. A person who does not comply with a reasonable request shall reimburse the requesting parent for court costs and attorney fees incurred by that parent to force compliance with this section.

C. A parent who attempts to restrict the release of documents or information by the custodian without a prior court order is subject to appropriate legal sanctions.

Many parents often assume, albeit wrongfully, that parental access to records only applies in situations where the parties share joint custody. This however is not the case. Non-custodial parents are also permitted access to records of their children pursuant to A.R.S. 25-408 (K), which in relevant part states:

Pursuant to section 25-403.06, the noncustodial parent is entitled to have access to documents and other information about the child unless the court finds that access would endanger seriously the child’s or the custodial parent’s physical, mental, moral or emotional health.

For more information on this or any other Arizona family law matter, contact the experienced domestic relations law firm of Ariano & Reppucci, PLLC.

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