Complete family law with attorney Keith Singer, the family law attorneys and legal professionals at the law office of Keith Singer, offer personally crafted legal solutions in the areas of family and juvenile law each week on this program. Attorney Keith Singer provides practical information on a different topic relating to family and juvenile law. You can find a complete list of programs by topic at the firm’s website located at keithsingerlaw.com. If you or someone you know would benefit from experienced and practical legal adviser representation in the areas of family law and juvenile law contact the attorneys and the law office of Keith Singer at 795-1800 to schedule an initial consultation and now today’s program.
I’m Keith Singer. I’m going to explain how courts in Arizona make decisions about legal decision making and parenting time and to do that I’m going to walk through the statute that is most applicable. Under Arizona law that would be ARS Title 25-403 entitled Legal decision making Best interests of the child. Though that statute applies equally to the determination of parenting time, in a separate program I explained in great detail the difference between legal decision making and parenting time, how they were concepts that really replaced custody which is a phrase that is no longer used in the family law courts in southern Arizona. Legal decision making, as a reminder, is about decisions in the area of education, medical, social, religious upbringing, and parenting time, it is about time that parents spend with their children and the concepts are separate, even though the way courts decide legal decision making in parenting time utilizes the same criteria for both. So let’s get into that and we will start with the statute itself. It reads at paragraph A, “The court shall determine legal decision making in parenting time either originally or on petition for modification in accordance with the best interests of the child. The court shall consider all factors that are relevant to the child’s physical and emotional well being, including.” And then there’s a series of eleven criteria that the court considers more specifically that we are about to go into that first paragraph.
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Podcast #3: How Do Courts Determine Legal Decision Making and Parenting Time?)
It introduces the core concept of family law as it relates to children- best interest. So regardless of all the other specific factors the courts are supposed to consider when deciding matters of legal decision making in parenting time, the underlying principal that we are focusing on and trying to accomplish in family law is the best interests of children. But it’s not as simple as just claiming that something or other is in the best interests of children. Family law courts nowadays are obligated to make specific findings for all of the relevant factors under 25-403. So when you’re arguing these concepts of legal decision making in parenting time, you can’t just say that well it’s in the best interest you have to support that with facts, stories, documents, evidence of all kinds to help the court reach its conclusions, its own findings of fact under the factors that the court considers that we will go into now.
That first factor. Number one: Past present and potential future relationship between the parent and the child under the law at the time of saying this. The first thing we look to when considering legal decision making in parenting time is what is the past relationship between the parent and the child? What is the present relationship? What is the future relationship? So it’s that relationship that is so critical nowadays to the court’s consideration of the most important issues for families in the family law court. It requires one to be able to articulate their relationship with their child should these matters come before the court. Some parents find that to be a natural thing to do and can go on and on about it. But others, more so the guys, seem to have difficulty speaking about their relationship with their child or children. They’ll say things like it’s good, which on a scale of one to ten, ten being the most helpful to accord one being the least helpful is like a one. There so many aspects of the relationship that one has with one’s child, there is the emotional aspect, the physical aspect, the behavioral interaction, what you do for them, how they react to you, what you mean to each other, how one relies on the other. It’s kind of a symbiotic relationship for some parents and describing it simply as good or bad is so inadequate when that factor is such an important one in the determination of what will happen with someone’s children in a family law court. So I encourage my clients and I encourage you to think deeply about the relationship you have with your child or children, and if you’re headed to family law court, that’s something you want to focus on quite a bit. The past relationship is certainly very significant to the court, but what’s been happening most recently is maybe even more important though sometimes that current circumstances when a family is breaking apart are much different in a typical and don’t represent at all what it has been happening for the most part over the course of the family history. And this third element the potential future relationship is one that is unique to family law in that we’re not usually allowed to speculate under the rules of evidence about what might happen in the future. But for purposes of courts deciding what will happen with families, the legislature has directed that what parents want and wish and hope for for the future is something the courts should be thinking about.
The second factor: the interaction in inter relationship of the child with the child’s parent or parents, the child siblings, and any other person who may have a significant effect on the child’s best interests. So this isn’t just the parents now that we are considering. We are looking at the relationship with siblings, with grandparents, aunts, uncles, with significant others. And there are frequently significant others who come into a family situations that go before the family law court.
The next factor number three: the child’s adjustment to home, school, and community. This looks at how a child is doing, if they’re doing well in their current environment then there’s a tendency not to want to change that significantly. If they are not doing well and it’s chaotic or they’re not adjusting well at all to the change that has occurred since the separation of the parents, then a court can consider that factor in making the parenting time schedule that is better for the child’s adjustment.
Factor four under the laws, I’m saying this it is subject to change, even year to year, so the statutes I’m describing at this moment maybe slightly different at the time you listen to this so you really want to check for yourself but the general concepts I think will still apply.
Factor Four under current law: if a child is of suitable age and maturity, the wishes of the child as to legal decision making and parenting time. This is a difficult subject because we don’t bring children into the family law courts to testify regardless of what you may have heard or what you may think. That’s a major no no in modern family law. There are other ways that the children’s voice comes into the court. Sometimes therapeutic professionals report to the court and the court social service agency, the court conciliation has interviewers and evaluators that more appropriately deal with children than in a courtroom environment which would be inappropriate, to put it nicely and abusive possibly to put it bluntly. It is very common for parents to come before the family law courts and to try to convey the wishes of their children to the judge directly and that sort of evidence considered hearsay under any interpretation or any relaxed rule of evidence that it is generally not allowed into the family law proceeding. There are occasions where the courts will permit it in some limited fashion and for some limited purpose but generally parents are not able to speak for their children and relay the statements of their children to judge, that’s a violation of the rules of the family law court. And although the wishes of children with respect to legal decision making and parenting time are certainly relevant and important, there are circumstances where children make judgments, want things that are not in their best interest, so courts give what weight the court believes is appropriate to the wishes of the children. In some cases great weight is given to the children’s wishes particularly when they’re much older. People ask me all the time at what age are children able to decide in Arizona family law courts and I give them the answer that the judges give to me or give in court again and again, which is when the children are eighteen. They are adults and they can decide matters of legal decision making and parenting time and until then it is up to the adults, the parents, and when they can’t decide the courts to make those decisions, considering the wishes of the children as appropriate to the situation. I’ll be back in a few moments and we will continue on the subject, going to the factors the court considers when determining legal decision making and parenting time.
You’re listening to family law with Attorney Keith Singer. Each week on this program attorney Keith Singer provides practical information on a different topic relating to family and juvenile law. Find a complete list of programs by topic at the firm’s website located at keithsingerlaw.com. If you or someone you know would benefit from experienced and practical legal adviser representation in the areas of family law and juvenile law contact the attorneys and the law office of Keith Singer at 795-1800 to schedule an initial consultation. Now back to the program.
We’re studying Arizona Revised Statutes 25-403, the critical statute that courts use to determine legal decision making and parenting time for children. We are continuing with Factor Five, the mental and physical health of all individuals involved. It is uncommon for physical issues to affect the decision making and parenting time. Some of them have to be pretty severely physically disabled in order to be unable to participate in decisions or to have time with their children or to even have their time limited. Accommodations could most certainly be made to most any circumstance, but mental health issues do commonly affect orders regarding legal decision making and parenting time. And we deal with a wide range of mental health issues in the family law court from serious mental health problems where people are involuntarily admitted into mental institutions to the guarded variety of issues that we all have as human beings and everything in between and the worst of those problems seem to present themselves when families are in crisis and breaking apart. Substance abuse is probably the most common mental health issue that I see in family law, but someone is going to share with the court the otherwise private details of the other parties’ mental health issues so we are commonly dealing with them in family law and in the practice of family law you become knowledgeable over the course of your career about mental health matters and become sensitive to it. There is a concept that we referred to as therapeutic jurisprudence, which is the notion that the social sciences like psychology should have an impact on how health family law cases are conducted and some judges think that that’s nonsense and they simply follow the law and other judges believe in this and incorporate into their judicial practice.
The next factor the courts consider when determining legal decision making and parenting time, Factor Six, is one that is kind of counter intuitive. It reads, “Which parent is more likely to allow the child frequent meaningful and continuing contact with the other parent.” This paragraph does not apply if the court determines that a parent is acting in good faith to protect the child from witnessing an act of domestic violence or being a victim of domestic violence or child abuse. We see a phenomenon in family law that is sad and I think kind of disgusting where at the beginning of the case one parent cuts off the other parent from access to the children, often out of vindication, anger, revenge because of some perceived wrong that that parent has done to them, as opposed to the children specifically, as a result of an affair to punish a parent. And of course it’s the children who are punished most. When a parent has that inclination to want to cut the other parent off, unless there is a really good reason, in terms of the best interest of the children to justify it, I would remind that parent that the court will later consider whether that parent was more likely or not to allow the other parent, the parent who they cut off, frequent and meaningful continuing contact with the children. By cutting off the other parent, the parent is not protecting their children, they may very well be undermining themselves in the family law proceeding to come. Again if there’s a true danger to the children then there’s an exception in this rule but otherwise the court wants to see each parent trying to facilitate as much parenting time and as much decision making for the other parent as is possible.
Factor seven: Whether one parent intentionally misled the court to cause an unnecessary delay to increase the cost of litigation or to persuade the court to give a legal decision making or parenting time preference to that parent. So all of the dirty tricks and the bad behavior and the slimy nonsense that gave a bad name to family law in the past is now through specific law – the sort of behavior that courts can now use against a parent who behaves badly in family law proceeding.
Factor eight: Whether there has been domestic violence or child abuse pursuant to Arizona Revised Statutes 25- 403.03. Certainly domestic violence is a very significant issue in family law and one that has a great impact on the court’s decision regarding legal decision making and parenting time. It is impossible to make decisions with a parent who is using violence against you because if you defy them you risk harm to yourself. Similarly it is contrary to the best interests of children for a parent who commits domestic violence against them or against the other parent possibly as well, to have time with those children without risk of harm to them.
Factor nine: The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision making and parenting time. This is the case where someone says, “if you don’t give me what I want then I’m going to cut you off financially” or “if you don’t ask me to pay child support I won’t ask to see the kids.” Things like that are considered now by courts to be significant in making decisions about what should happen with the children.
Factor ten: Whether a parent has completed the mandatory parent information course that is required of all parents who are involved in family law proceedings that involve legal decision making and parenting time issues.
Factor eleven: Whether either parent was convicted of an act of false reporting of child abuse or neglect. Under Arizona Revised Statute Title 13- 2907.02. That’s the criminal statute. This is an interesting addition that takes away or was supposed to take away the incentive for a parent to make a false claim of abuse as a way to get a better position. Occasionally we still see parents who will falsely allege molest or abuse by the other parent against a child when this divorce process takes place just out of either revenge or vindication or because they somehow convinced themselves even if it isn’t true and if someone is prosecuted for that conduct that is something that a court can definitely consider in limiting that parent’s parenting time and limiting that parent’s ability to make decisions relating to the children. When it comes to disputes about legal decision making, whether there will be sole or joint legal decision making, there are some additional factors that the court is directed to consider under Arizona Revised Statutes 25-403.01. The first factor the court considers under that statute is the agreement or lack of an agreement by the parents regarding joint legal decision making. Second, whether parents lack of an agreement is unreasonable or is influenced by an issue not related to the child’s best interest.
For example, what if a parent is angry at the other parent for some matter that they perceive as being very significant for the children but which may not be perceived by a court to be that significant such as when someone has a significant other who hasn’t even met the children. There might be a lot of hard feelings about that at the end of a marital relationship and that may be affecting why a parent doesn’t want to make joint decisions with the other parent because they’re angry about the indiscretion but that would not be considered by a family law court in and of itself to be a legitimate reason not to share joint legal decision making. In other words, the parent has to get over that and focus on the children and not on the hard feelings or the revenge. The third factor, 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 legal decision making. In many cases the parents were able in the past to make joint decisions for their children and they did so in an open and sensually functional way but because of the resentment and the hard feelings and the emotional anguish that is resulting from the breakup of the family relationship, one parent just doesn’t feel like they can continue to make decisions. But the court can look at the past decision making ability and say “Look you’ve done in the past, you need for the sake of the children to do it in the future.” As I’ve said in other programs and I’ll continue to reiterate, there is something like a presumption favoring joint legal decision making and many people argue favoring equal parenting time in family law courts as interpreted by the judges more and more. So to obtain a sole decision making order in modern family law, there really needs to be some significant reason that co-parenting is impossible. Finally factor four, whether the joint legal decision-making arrangement is “logistically possible”. What does “logistically possible” mean? In this day and age, it’s possible to have communication relating to decisions for children electronically. That’s the most common way that parents do communicate about their children. Some have phone conversations but many find that to be a little bit more stressful and so they communicate by text or email. This also gives proof of the communication when necessary and appropriate. For electronic communications, whether someone is down the block or across the country, the decisions can still be made jointly and kind of instantaneously. It’s true that if one parent is living in Arizona with the child and the other parent is living in New York or in some other country it’s more difficult for the other parent to be as in tune with what’s happening at school, to be taking the child to medical appointments presuming the child is living primarily in Arizona. And so in some cases, judges want to give the parent who has the child primarily final say. So that that parent can make a decision in the event of a disagreement with the other parent who is located far away. But many courts find that parents can make joint decisions for children no matter where they are and there are specific provisions in the statute for service members who are forced to go overseas to have some protections under the law so that they don’t lose their rights as they are serving their country. And regardless of what is ordered for legal decision making, the statute I’m reading from states that a parent is entitled to reasonable parenting time to ensure that the minor child has substantial, frequent, meaningful, and continuing contact with the parent, unless the court finds that would harm the child.
You have been listening to family law with attorney Keith Singer. This program is offered by the law office of Keith A. Singer as a service to our local community. The information provided in this program is not intended to constitute specific legal advice or to create an attorney client relationship. If you or someone you know would benefit from experienced and practical legal adviser representation in the areas of family law and juvenile law contact the attorneys and the law office of Keith Singer at 795-1800 to schedule an initial consultation.