The following is a transcript of an original Podcast created by Keith A. Singer.
Click this link to hear an audio version of this Podcast:
Podcast #1: What is Family Law, Juvenile Law, Legal Decision Making, Parenting Time and Placement?
Family Law: Defining Some Terms
I will start by defining some terms – things that you are going to need to know to understand later programs and materials that I will cover. In the first part of this program I’m going to explain the basics about what family law is, and what the juvenile court is. The second part of the program I will get into some basic concepts of family law and juvenile law: legal decision making, parenting time and placement
What is Family Law? & What is Juvenile Law?
For one thing, we have two different courts.
Both, though part of the same court system, are really different divisions of the same court- the Superior court here in southern Arizona. The adult family law court as we may call it handles certain array of proceedings and situations. The juvenile court handles other matters – this court in our community is located in a different building, but this is not always the case in Arizona. Sometimes the courts deal with the same families and there is often cross training occurring among the judges.
The adult family law court is where most of the family law takes place. There are a number of actions that are filed in the adult family law court that really define what we do in family law. There is the divorce, which of course everyone knows what that is. There is also legal separation, which is similar to a divorce in almost every respect, except at the end the parties are still married. It accomplishes virtually the same thing in almost all respects as a divorce.
Division of Assets and Debts
There is division of assets and debts. There is Spousal maintenance and Alimony. There are Final Decision Making with Respect to Children, in which child support orders are issued when appropriate. Decrees are issued at the end of the process. Decrees differ at the end of a legal separation because the parties are still legally married, so they cannot remarry without changing the legal separation to divorce. Then there’s the post decree modifications. These are cases where a divorce has already taken place but something needs to be changed, whether it be legal decision making, parenting time, child support or anything else.
There are the enforcement proceedings. These are cases when someone does not pay the spousal maintenance or child support that they are supposed to pay. There is also a special court, the IV-D Court, that we will learn about in another program in much more detail. The IV-D Court assists litigants to establish, enforce and modify, when appropriate, child support orders in certain cases.
There are special paternity actions or just paternity actions. This occurs when unmarried couples who have children need orders relating to legal decision-making, parenting time, and child support. Perhaps the expenses related to the home or birth of the child, sometimes through a divorce or paternity case, is paired with a child support case in the IV-D division. Again, we will learn about this in more detail later. This is a bifurcated case where it is actually being handled in two different courts within the superior court system.
Family Law Courts
The family law courts are also where grandparents and other third parties, such as aunts, uncles, and non-family members who might have someone’s children might go as well to address their rights. There is a body of law that allows the grandparents and other third parties to claim visitation, and in some cases, placement of children who are not their own but with whom they have a relationship, or perhaps don’t have a relationship but wish to.
There are numerous other types of family law proceedings and corollary proceedings in the probate court, in the bankruptcy court, and even the criminal court that relate to family law and we will go into many of them in various programs of this series but I’d be remiss if I didn’t mention in the first list of main family law proceedings.
The order of protection proceeding, which we see commonly paired with our family law cases and in the way the transition to the juvenile court proceedings, the order of protection is one that we deal with in terms of its implications for families in both the adult and the juvenile courts on a regular basis.
A short drive across town at the juvenile court is a whole different array of proceedings that are taking place- many that the public is largely unaware of. This is probably for the best if you are lacking in knowledge about what happens at the juvenile court and you really don’t know what really happens there aside from the kids who get in trouble, then that’s a good thing, but that court does critical work in our community.
The primary workload that they have relates to delinquencies and dependencies. Delinquency: That’s the term that people probably are most familiar with. These are the cases where minors engage in acts that would be crimes if they were adults, but under the juvenile system, though they are still committing crimes, a more therapeutic approach are taken in an attempt to rehabilitate them. The probation department is a very extensive social service agency and very well established with a long history of working with young people at risk to help them divert from the juvenile court process. There are many young people who are referred to the juvenile court because of delinquent behavior who have one experience and never go back, and then of course there is the full spectrum of the alternatives to that.
The juvenile court also handles a type of case called a dependency. You have heard of child protective services which is now referred to as DCS , the department of child safety, in Arizona and you might wonder what happens when they remove a child from the parents and put the child in foster care. Well there is a court proceeding that reviews, monitors, and makes orders with respect to that process- that’s called the juvenile dependency. A superior court judge who gains experience over time, and some of them are extremely experienced, will preside over a hearing where DCS is a party represented by the attorney general of Arizona or assistant attorney general. At court, the parents will be at the table and they will have attorneys representing them. The child or children, when appropriate, will be in court and they will have attorneys representing them and sometimes separate attorneys representing their best interests. It is not just one hearing, but it is a series of hearings which can sometimes be a year or more when parents are offered services to help reunite them with their children. There services are intended to address the reasons why the parents are unable or unwilling to care for their children. If the parents are able to reunite with their children then the juvenile dependency process ends. If the parents are unable to reunite with their children then another process begins and that is the process of severance. This is often the severance of their parental rights or the establishment of a guardianship in the juvenile court. A special form of guardianship, Permanent guardianship, is distinguished from the sort of guardianship that you would have obtained at the probate court in downtown Tucson. There is also another planned permanent arrangement home which is a circumstance where children who are unlikely to be adopted because maybe they are older or don’t want to be adopted, might remain in a group home until they’re eighteen years old. There is a well-established after care program that is also provided now by the juvenile court for children who need some help bridging to adulthood.
For some children the permanency plan is adoption and that’s the most well-known proceeding that the juvenile court does. It’s an emotional and a gratifying completion of what is often a long and arduous process and for the child who had to finally get a permanency. It is also a sad time for family who has lost a child through the dependency process. You might come across one of the adoptions in the park which is an amazing thing that we have in this community and I’m sure in others. This is where groups of families come together in a local park and instead of the final Orders and a hearing with respect to the adoption taking place in a courtroom house, which isn’t the most joyous therapeutic environment, the Adoption is finalized in the park as a celebration of permanency and a family. It is a beautiful event, especially for those families who reached that point in the juvenile court process. It is a wonderful time and a time of great joy. There is so much more that is going on for our community in the adult and the juvenile law courts and we’ll get to many of those things in the upcoming programs.
In the first part of the program I explained the basics about what proceedings are filed in the adult family law court as a way to define what family law is and which proceedings take place in the juvenile court and little bit about those proceedings. In this part of the program I’ll explain three essential concepts that you need to know to understand even the basics of family law and juvenile law: Legal decision making, which used to be known as custody but it has been replaced and is no longer the correct term and we don’t really use it anymore.
Legal Decision Making
The term that we use instead of custody is legal decision making. Legal decision making is about decisions for children in the areas of education, medical, social, religious, and some believe personal appearance, particularly significant changes to personal appearance like earrings, especially in unusual places, and tattoos which are actually becoming an issue for parents of minor children in this day and age. Some believe to some extent activities to be a legal decision-making area, at least to the extent that those activities don’t affect the other parents parenting time.
Major decisions for children: There is sole legal decision making and joint legal decision making. Sole legal decision making allows and obligates one parent to make the major decisions relating to the minor children. Joint legal decision making requires both parents to be involved in the decision making related to the minor children for major decisions and neither parent is entitled to make a final decision in the event of a disagreement. In the case of joint legal decision making, if there is a disagreement regarding major decisions related to the minor children, parents are obligated to mediate through a third party or through the court of conciliation mediators. This is a social service agency offered by the court before taking the matter back to court if they are unable to reach a decision.
Sometimes a decision has to be made before court and that creates a chaotic scenario for the parties when they are ordered to share joint legal decision making. But even when there is an order for sole legal decision making, the parent who has that right still, considered by the family law courts to my observation, has an obligation to at least inform the other parent and keep the other parent in the loop as it relates to these major decisions.
We have another phenomenon in family law, at least in Arizona, that isn’t so much provided by the law, but is utilized to resolve Legal decision-making disputes, in regards to their settlement at least. That phenomenon involves the order for Joint legal decision making with one party to have the final say. This is the rough equivalent of the sole decision-making order in the parent who has the final say but it’s intended to give the parent who doesn’t have the final say more right to be informed and included in that Major decision before the other parent either accepts the recommendation, request, or ultimately makes a final decision in contradiction to the other parent’s wishes. When these agreements are reached by parents they are ordered by the court and sometimes the court will order a joint legal decision making with one parent having the final say.
Legal Decision Making vs. Parenting Time
Legal Decision Making is distinguished from the concept of parenting time which was formally known as visitation. Visitation had kind of a negative connotation for those who had it typically -fathers. So, the terms that we’re using in family law are gradually developing to be more politically correct or therapeutically correct. But the concept of parenting times about time that parents spend with their children and we have parenting time for mother and then we have parenting time for father. So we try to get away from the notion that there is a primary home or that someone has physical custody, a term that is kind of antiquated.
We speak of the parenting time that mother has and the parenting time the father has: there can be Placement, another programs topic, with one parent or another. “Placement” is the term that we now use in favor of instead of “Physical custody.” Placement is referring to where the child resides primarily but there doesn’t need to be a primary residence under Arizona law. There certainly is no presumption in favor of a primary residence in fact it appears the opposite is true.
There can be equal parenting time plans of varying sorts. There can be Parenting plans where the child resides primarily with one parent, dividing up the time in all sorts of ways depending on the circumstances of the family. In addition to the regular parenting time schedule, there’s also a holiday schedule of parenting time. A holiday schedule would provide for things like the children’s birthday, the parents’ birthday, Mother’s Day, Father’s Day, major holidays and sometimes even minor holidays. The children’s breaks from school, spring, fall, and Thanksgiving Holidays are usually alternated between the parents, such as mother in even years and father and odd years. Sometimes holidays are provided just to one parent for one holiday and another parent for the other holiday and sometimes the holiday is shared. There are parents who try to go trick or treating with their children every year together as a family even after they go through the legal process to formalize the end of their relationship. Finally, there’s vacation parenting time. The vacation parenting time usually takes place during the children’s break from school but not always. It’s an uninterrupted block of time that usually supersedes the other parents parenting time that gives the parent an opportunity to take a trip to Disneyland with the kids or to go camping for more than just a few days. Sometimes the vacation doesn’t really result in a trip anywhere and the parent just continues to go to work as usual but experiences a week or two, or less or more, depending on what the vacation schedule is with the children. They’re not actually spending all the time with them but it is still as much of a vacation as that parent is able to exercise.
So we’ve have Legal decision making, which is about decision making for children, and we have parenting time, which is about time with children. They’re two very separate concepts. Many people used to use the old term “custody” to mean both of those things and it was difficult to know when someone throws out that phrase whether they were referring to legal decision making, meaning decisions about children, and parenting time, meaning the time parents spend with children or the time children spent with one parent to another or we had this concept of physical custody which was like placement is now. It’s appropriate and will be helpful particularly if you have to go before a judge and use the proper terminology so that everyone in the courtroom is speaking the same language. So, use the phrase “legal decision making,” use “parenting time” to talk about your time or the other parent’s time with the children and use the phrase “placement” if it’s your intention or if it’s appropriate for the children to live primarily in one residence or another.
Some judges don’t even use the term placement and they just refer parenting time and if a child resides primarily in one residence than that parent is going to have significantly more parenting time than the other parent is but we don’t really need to establish a primary residence through the parenting time order, it is just the division of parenting time results in the child residing primarily with one parent instead of the other.
It’s worth noting that in the juvenile court, the language that they are using is still a little bit in line with the traditional language of family law instead of this supposedly more progressive use of legal decision making instead of custody. You will hear the word custody being used in the juvenile court still and more frequently than you will in the family law court where that word is really the word custody is in disuse.
With respect the parenting time you’ll hear the term “visitation” in the juvenile court even when it’s offered to parents, where that term in the family law courts is really no longer used except for to speak of the contact between third parties and children. “Placement” is a word from the juvenile court that has found its way into family law language. In the juvenile court, “placement” refers to the residence where the child is living temporarily during the dependency process, it could be with a parent, it could be a foster parent or relative, grandparent, aunt, uncle. The same words can have different meanings depending on where the proceeding is being heard and I encourage you to use the proper terminology and language to refer to your family law in juvenile case because that’s going to help you communicate clearly intelligently and hear and understand the language of the courts which is not limited to lawyers. You can and should use it too.