Benavidez Law Blog

Modification of Custody

    A modification of custody occurs when a parent attempts to change the court-ordered award of legal custody or of physical custody of a child.  Arizona Revised Statute 25-403 governs a modification of custody in this state.  The statute directs the Court to examine all relevant factors to determine whether a modification would be in the best interests of the child.  The Court is required to make specific findings on the record as to all relevant factors and the reasons why the decision is in the best interests of the child.  The relevant factors considered by the Court include the following:

    1. The wishes of the child's parent or parents as to custody; 2. The wishes of the child as to the custodian; 3. The interaction and interrelationship of the child with the child's parent or parents, the child's siblings, and any other person who may significantly affect the child's best interest; 4. The child's adjustment to home, school and community; 5. The mental and physical health of all individuals involved; 6. Which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent; 7. Whether one parent, both parents or neither parent has provided primary care of the child; 8. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding custody; 9. Whether a parent has complied with the requirement to participate in the domestic education class on children's issues; and 10. Whether either parent was convicted of an act of false reporting of child abuse or neglect.

    an action for modification of custody begins when a person files a Petition for Modification of Custody, along with an Affidavit RE: Minor Children and an Affidavit stating whether any requirement that the parties participate in an alternative dispute resolution procedure prior to initiating legal action has been met.  The applicable filing fee also must be paid.  These documents are then served on the other parent, who has an opportunity to file a Response.  After the Response is filed or the period of time to file a Response has elapsed, the party seeking modification of custody must file a Request for Order Granting or Denying Custody and an accompanying Order.  After receiving these documents, the judge will determine whether adequate cause has been shown to proceed with a custody hearing.  If the Petition and Response state adequate reasons justifying a hearing on modification of custody, the judge will set a hearing on the matter.  If the judge feels that there is insufficient cause to modify custody, the judge will decline to set a hearing on the matter, and the action for modification of custody will be denied. 

U.S. Divorce Rate Falls To Lowest Level Since 1970

    This information was originally published on January 12, 2009 on http://www.msn.com.

    The divorce level in the United States has fallen to its lowest level since 1970.  The rate of divorce gradually increased through the 1960s, and skyrocketed in the 1970s and 1980s with the advent of no-fault divorce in every state.  However, the divorce rate gradually decreased in the 1990s and 2000s.  The highest rate of divorce was recorded in 1981 as 5.3 divorces per 1,000 couples.  It has now fallen to 3.6 divorces per 1,000 couples.

    There are several different theories as to why the rate of divorce is declining.  Some experts argue that the lower divorce rate is not an indication that more people are choosing to stay together in the long-term.  Instead, they argue that less people are choosing to marry and are instead co-habitating.  In fact, the rate of persons choosing to co-habitate rather than marry has increased ten-fold since 1960, and the rate of marriage has decreased by about thirty percent over the past twenty-five years.  The end of long-term co-habitating relationships is not documented in the studies performed on the marital divorce rate, and may therefore account for the lower divorce rate for those who choose to marry.  These experts postulate that many people who choose not to marry grew up in the divorce-prone 1970s and 1980s, and are therefore more skeptical about entering into marriage.  Other persons choose to co-habitate rather than enter into a marriage because co-habitation is increasingly socially acceptable.  Some persons also refuse to marry because they feel it is inappropriate to do so until such a time when same-sex marriage is legalized.

    Other experts argue that the decrease in the divorce rate is attributable to the "divorce-divide."  Proponents of the divorce-divide theory argue that the divorce rate is indeed falling for college-educated, affluent couples, but not for couples who are less affluent and educated.  The difference could be attributable to many factors.  Affluent couples often have less concerns about money, which eliminates or reduces a source of tension in the home.  Many college-educated individuals also wait longer to get married than those with a high school degree.  Marrying at an older age has been linked in many studies to greater stability in marriage.  Furthermore, some research has demonstrated that educated couples are more willing to bend traditional gender roles.  This flexibility may also improve the stability of marriage. 

    Government initiatives directed toward the stabilization of marriage may also have contributed to the lower divorce rate.  Little research demonstrates the efficacy of these programs.  Nonetheless, many states now offer marriage-strengthening programs or marital counseling to assist couples experiencing difficulty in their marriages.  The federal government has also spent nearly $200 million nationwide in the past five years on its Healthy Marriage initiative.  These programs focus on improving communication and changing the way that participants cope with anger and stress within the marriage.  Increased communication and coping skills may in turn also contribute to the lower divorce rate.

Covenant Marriage in Arizona

    Arizona is one of three states in the country that allows covenant marriages.  A covenant marriage limits the ability of the spouses to seek a divorce in Arizona.  A covenant marriage is entered into by the parties declaring their intent to enter into a covenant marriage on their application for a marriage license.  The marriage license will then contain language indicating that the marriage is to be a covenant marriage, and the clerk of the court files notice of the intent of the parties to enter into a covenant marriage.

    The intent to enter into the covenant marriage should state the following: "We solemnly declare that marriage is a covenant between a man and a woman who agree to live together as husband and wife for as long as they both live.  We have chosen each other carefully and have received premarital counseling on the nature, purposes, and responsibilities of marriage.  We understand that a covenant marriage is for life.  If we experience marital difficulties, we commit ourselves to take all reasonable efforts to preserve our marriage, including marital counseling." A.R.S. 25-901.

    Additionally, the parties must file with the court an affidavit stating that they have received premarital counseling from a marital counselor or a member of the clergy.  The premarital counseling must encompass "a discussion of the seriousness of covenant marriage, communication of the fact that a covenant marriage is a commitment for life,  a discussion of the obligation to seek marital counseling in times of marital difficulties, and a discussion of the exclusive grounds for legally terminating a covenant marriage by dissolution of marriage or legal separation." A.R.S. 25-901.  The parties's signatures also must be witnessed by a clerk of the court, and the parties must file a notarized attestation signed by the marital counselor confirming that the parties have in fact participated in marital counseling.

    The grounds for divorce or legal separation in Arizona are limited by entering into a covenant marriage.  Generally in Arizona, either spouse may request a divorce for any reason, and the Court will not inquire into that reason.  The law applied to covenant marriages in Arizona is different.  A party requesting a divorce must be able to demonstrate one of the grounds for ending a covenant marriage before a divorce will be granted.  Those grounds are enumerated in A.R.S. 25-903 and are as follows:

1. The respondent spouse has committed adultery; 2. the respondent spouse has committed a felony and is sentenced to death or imprisonment; 3. the respondent spouse has abandoned the marital residence for at least one year before the petitioner files for divorce and refuses to return to the residence;  4. the respondent spouse has physically or sexually abused the spouse seeking the divorce, a child, a relative of either spouse living in the marital residence, or has committed domestic violence or emotional abuse; 5. the spouses have been living separate and apart continuously without reconciliation for at least two years; 6. the spouses have been living separate and apart continuously without reconciliation for at least one year after a legal separation is entered; 7. the respondent spouse has habitually abused drugs or alcohol; and 8. the parties agree to end the marriage.

    If a spouse seeks to terminate a covenant marriage under the third or fifth grounds, that spouse may file the Petition for Dissolution prior to meeting the required time period to obtain the divorce.  When this occurs, the court stays the matter until the requisite amount of time has passed, except that the court may enter temporary orders during this time.

    The grounds for obtaining a legal separation of a covenant marriage are similar to the grounds required for divorce.  However, the grounds for a legal separation do not include an agreement between the parties to enter into a legal separation.  See A.R.S. 25-904.  Another difference is that there is an additional ground that allows a legal separation of a covenant marriage rather than a divorce.  The additional ground is "the respondent spouse's habitual intemperance or ill-treatment of the other spouse is of such a nature as to render their living together insupportable."   

An Introduction to Collaborative Divorce

What Is Collaborative Divorce?

    Collaborative Divorce is an interdisciplinary alternative dispute resolution process that is becoming increasingly popular amongst divorcing couples.  It seeks to address the legal, psychological, financial, and social impact of divorce on the family unit as a whole, as opposed to focusing on litigation and the legal ramifications of divorce.  At the beginning of the Collaborative Divorce process, the parties and all professionals assisting on the case usually sign an agreement stating that all the involved professionals will withdraw from the case if either party chooses to leave the collaborative process and engage in litigation.  Collaborative Divorce seeks to treat every person involved in the divorce in a respectful manner, and without the adversity that is often present when a divorce case is litigated.  The parties and the involved professional work together to resolve every issue in the case without resorting to court intervention.

What Professionals Are Involved In Collaborative Divorce?

    Several professionals are usually involved in the Collaborative Divorce process.  Both parties should each retain their own attorneys to provide legal assistance.  The attorneys should be experienced in family law and have collaborative divorce training.  Both parties should also retain a life coach.  The life coaches are trained mental health professionals with experience in the area of divorce and marital relations.  They are meant to assist each party in coping with the emotions generated by the divorce, and to help each party move beyond any negative emotions to enable the parties to move on from the divorce as individuals.  Life coaches also assist the parties in learning to respectfully and effectively communicate with each other in order to finalize the divorce proceedings and act in the best interests of the children.  A counselor for the children is another professional generally involved in collaborative divorce proceedings.  The counselor is able to monitor the children's well-being during the divorce process and serves as a neutral third party who can give the spouses unbiased feedback about the children.  This individual should be an experienced therapist specialized in children's issues.  It is also wise to involve a financial planner in the collaborative divorce process.  The financial planner is able to advise the parties as to the financial ramifications of different allocations of property and debts.  Both the financial planner and the child's therapist should be jointly retained by the parties.

Why Collaborative Divorce May Be Beneficial

    Collaborative Divorce is a good solution for many people involved in the dissolution process because it addresses more issues then can be addressed through litigation.  When spouses participate in Collaborative Divorce, they receive guidance on the emotional and financial ramifications of their decisions.  Often a court cannot effectively address these issues, and parties only receive information as to the legal effect of decisions.  Collaborative Divorce also allows divorcing spouses to take control of their own destinies and reach agreements that are individualized and best serve their unique situations.  Court rulings are often unable to comprehensively address all of the issues in the case.

The Criticisms of Collaborative Divorce

    Collaborative Divorce has been criticized on several fronts.  First, some people feel that engaging in Collaborative Divorce precludes an attorney from truly serving the best interests of the client.  They argue that the attorney's true interest shifts from advocating for the client's position to encouraging a settlement of the case because the attorney is forced to withdraw if settlement is not reached.  Similarly, some question whether an attorney is able to sufficient separate him/herself from their traditional adversarial roles to effectively facilitate a collaborative agreement.  It is also questionable if attorney-client communications will be privileged, as many of the agreements the parties initially sign to enter into the Collaborative Divorce process are ambiguous about confidentiality.  The economic feasibility of Collaborative Divorce has also been questioned.

The Dangers of Social Networking

What Is Social Networking?  

  Social networking websites are on-line communities where persons may post a profile, messages, photographs, videos, status updates, friends, group affiliations, and much more information.  Popular general social networking websites include MySpace, Facebook, and LinkedIn.  Networking may also occur through the use of blogs, where persons often write information in a kind of on line diary.  Participation in websites geared toward certain sectors or interest groups of the population (such as ivillage.com or eharmony.com) is also social networking, as is use of website to post pictures such as Flicker, or personal ads such as Craigslist.

Why Is Social Networking Dangerous?

    In Arizona family courts, it is becoming increasingly prevalent to see information that was posted on a social networking website used as evidence in court.  Often people do not realize that information posted on a social networking website may be easily accessed by anyone.  There is a sense of anonymity and informality over the Internet where many people feel that they can post information about themselves that could be damaging in other settings.  Lawyers and parties now routinely conduct searches through social networking websites to obtain information that could be compromising in a family law case.

How May This Information Be Used in Arizona?

    Arizona is a no-fault divorce state.  This means that information about the reasons behind the decision to divorce is irrelevant and cannot be admitted to effect the division of assets and debts or to determine child support or spousal maintenance.  However, information about the behavior of one or both parties may be relevant in determining legal and physical custody of the children.  The Court has discretion under A.R.S. 25-403 to consider "all relevant factors" in determining the custody of a child.  Information posted on a social networking website that tends to show that a parent is unfit to care for the child is therefore generally admissible in custody disputes, provided that the information can be authenticated as belonging to the parent.  Information posted by another person about the parents or by the child, or by another person about the parent may also be admissible.

How Can You Protect Yourself?

    The best way to protect yourself is to not allow compromising information, pictures, videos, or posts to be placed on a social networking website.  However, if you are contemplating a family law suit, and you are aware that there is some information on the Internet that shows you in an unfavorable light, you should delete that information and set privacy controls on your social networking website so that strangers cannot easily access your website.  You should be aware that this may not be enough to protect you.  Even if the settings on the website do not allow the public to view the website, it is likely that an attorney would be able to subpoena the information on the site from the organization that maintains the website.  The organization that maintains the website will also archive all information that was ever posted on the website even after it has been deleted, so the deleted information could be discovered.  It is also likely that the computer where you use the social networking website would store deleted information, and that the information could be discovered if the computer was analyzed by a forensic computer expert.

How To Tell Children About Divorce

    One of the most difficult conversations a parent can have with a child is informing the child that the parents are divorcing.  Parents are often uncertain as to how to approach the conversation and worry about the child's reactions.  Below are some tips for approaching this conversation in a manner that will reassure the child and make the discussion more productive.  The tips originated from Jennifer Coleman, a counselor with a Master of Science in Marriage and Family Counseling.  Her comments were originally posted on the December 31, 2008 podcast "Talking To Your Children About Divorce" at http://www.kramer.vs.rosen.com.

    First, if at all possible, the parents should tell the child about the pending divorce together.  Telling the children together is important because it projects a uniform message to the child.  It also reassures the child that the parents are still capable of communicating and working together in the best interest of the child, even if they are experiencing difficulties getting along in general.  Modeling this cooperative behavior from the start also shows the child that the parents will be able to continue working together as parents. 

    The parents should choose a place to tell the child about the upcoming divorce where everyone, especially the child, feels comfortable.  The location should also be semi-private, so the child will feel like he/she has the ability to express feelings about the divorce.  It is also generally preferable for parents to wait to tell the child about divorce until the parents can offer some tangible information as to how the child's life will/will not change in the face of the divorce.  For example, the child will be reassured if the parents can offer information about who is moving out of the house, where the child will live, and how often the child will see the parents.

    The conversation will often be smoother if the parents prepare ahead and together for what will be told to the child.  It is important to reassure the child that the divorce is not the child's fault, and that both parents will still love the child.  Often younger children will not require further information beyond the knowledge that they will continue to be cared for by the parents.  However, the parents should expect that older children will have more questions and concerns.  It is important to give older children the information they require without placing them in the middle of the divorce or in a caretaker role over the parents. 

    To this end, it is important for parents to avoid statements placing blame for the divorce on the other parent or on the child.  It is imperative for the parents to avoid making the child feel guilty, like the child caused the divorce, or that the parents would remain married if it were not for something that the child did/did not do.  Furthermore, the child loves both parents, and when one parent bad-mouths the other, the child often feels that he/she is required to make a choice between the parents.  This is also very harmful for the child.  A parent should strive to preserve the relationship between both parents and the child and avoid making one parent the "bad guy" in the divorce.

    Furthermore, the child should be protected from information about situations that the child cannot effect - particularly finances and personal information.  A child should not be placed in the role of worrying whether a parent will be emotionally or financially stable. 

    Parents should show that they are aware that the child may have a variety of reactions to the news that the parents are divorcing, and that the child's reactions are okay.  A parent should not show surprise to any reaction that the child might have.  

    Often parents are concerned that they will break down and become emotional during this conversation.  Showing emotions is acceptable to a point because it shows the child that it is okay for the child to be emotional as well.  However, if a parent becomes uncontrollably emotional, the child will then worry about the parent's mental health.  Parents should avoid placing the child in this position. 

    The above information, along with continued cooperation between the parents, are key to protecting the child's future well-being.  Numerous studies have shown that children perform better academically, emotionally, physically, and socially when they are protected by their parents from the divorce proceedings and when the parents are able to maintain a civil relationship in making parental decisions.

Changes to A.R.S. 25-318(B)

    Recent revisions to A.R.S. 25-318(B) will become effective on January 1, 2009.  A.R.S. 25-318 addresses the division of property and assets in an action for dissolution of marriage.  The revised text of A.R.S. 25-318(B) now states "[i]n dividing property, the court may consider all debts and obligations that are related to the property, including accrued or accruing taxes that would become due on the receipt, sale or other disposition of the property.  The court may also consider the exempt status of particular property pursuant to title 33, chapter 8." 

    Previously, Arizona law limited the ability of the court to address tax consequences when allocating property and debts.  The seminal case in the area is the Supreme Court of Arizona's decision in In re the Marriage of Goldstein, 583 P.2d 1343 (1978).  The court held that the trial court properly declined to consider the husband's tax bracket in allocating certain property to the husband, because there were no immediate tax consequences associated with the distribution of the property, and considering possible future tax variables and consequences was speculative.  This position was affirmed in Johnson v. Johnson, 131 Ariz. 38(1981), where the court refused to consider the value of an unmatured pension plan in light of tax rate or bracket.  However, in Koelsch v. Koelsch, 148 Ariz. 176(1986), the court allowed consideration of tax consequences on a pension plan because the appellant was close to retirement, and the tax consequences could therefore be determined with reasonable certainty. 

    Therefore, under previous law, the court could not consider the tax consequences associated with an award of property, unless the tax consequences were imminent.  This approach had a negative effect of rendering some property distributions unequal.  For example, in an action for dissolution where two homes of equal monetary value are the only property owned by the parties, the court would consider a division whereby one spouse keeps the marital residence while the other retains the second home to be equitable. However, the spouse awarded the second home will incur capital gains taxes when that home is sold, while the spouse awarded the marital residence will likely not owe any taxes upon the sale of that residence.  The second home is therefore worth less than the marital residence because of the associated tax liability, but a court would have been unable to consider the capital gains issue unless sale of the second home was imminent.

    The new wording of A.R.S. 25-318(B) appears to open the door and allow the court to address future tax consequences when equitably allocating assets and debts.  Addressing the future tax consequences is not mandatory to the court - it is instead an option that a judge can exercise when appropriate.  It is unclear how the change in the statute will effect the cases cited above. It is also likely that we will see litigation clarifying this area in the future.

Arizona Court of Appeals Holds that Ineffectual Assistance of Counsel does not always Justify Reversing an Order Terminating Parental Rights

       On November 7, 2007, Division Two of the Arizona Court of Appeals rendered an opinion in John M. v. Arizona Department of Economic Security and Shannon M.  John M. appealed the termination of his parental rights on the grounds that he had received ineffectual assistance of counsel.  John argued that the Strickland v. Washington, 466 U.S. 668 (1984) standard that a party must show both that the representation received fell below professional norms and that the faulty representation materially affected the outcome of the case was only applicable to criminal proceedings.  Instead, John argued that the court should evaluate claims of ineffective assistance of counsel under a due process standard.  The State argued that the Strickland test should be applied, and that John's appeal should be denied because he did not show that he was prejudiced by errors made by his attorney.

       The Court noted that no Arizona court has directly addressed whether ineffective assistance of counsel justifies reversing an order to terminate parental rights, and if so, what circumstances justify reversing that order.  The Court determined that the Strickland standard was relevant, even though that case involved a criminal proceeding, because the case relied on due process and fairness concerns and not exclusively on the Sixth Amendment.  However, the Court believed that the distinction between criminal proceedings and termination of parental rights could be relevant to the standard of review applied to a case, because cases involving the termination of parental rights must balance the liberty interest of the parent in raising the child and the child's liberty interest in safety and security.  The Court also believed that the role of the attorney in a termination proceeding, while important, is not as significant as the role of an attorney in a criminal proceeding, because juvenile judges are not limited to the evidence presentedand may direct further inquiry to make certain that parties are properly represented.

       The Court explicitly decided not to rule on whether Arizona allows only a claim of ineffective assistance of counsel as grounds to terminate parental rights, or what would be required to show incompetence.  Instead, since the Strickland standard applies in termination proceedings, John M. would need to demonstrate that errors made by his attorney negatively impacted the outcome of his case.  John M. did not make such a showing, so the trial court's Ruling was affirmed.

Arizona Court of Appeals Holds that Private Action to Terminate Parental Rights may be Concurrently Adjudicated during Dependency Proceeding

Full opinion can be found here.

     On September 30, 2008, Division Two of the Arizona Court of Appeals held in Bobby G. v. Arizona Department of Economic Security, 540 Ariz. Adv. Rep. 6 (2008) that a private Petition to Terminate Parental Rights may be filed pertaining to a child already involved in a dependency proceeding. In this case, the minor child was adjudicated dependent, and her father was actively involved in his case plan and working toward reunification. The Arizona Department of Economic Security asked the Court for additional time to accomplish reunification at the permanency hearing and received an additional ninety days. The attorney for the minor objected at that time, and thereafter filed a Petition to Terminate Parental Rights under A.R.S. §8-533. This statute authorizes interested parties to file a Petition to Terminate Parental Rights, and is one of two statutory mechanisms in Arizona that allow a termination of parental rights. The second method of terminating parental rights in Arizona is codified under Section 10 of Title 8 in the Arizona Revised Statutes and applies to children who have been adjudicated dependent. These statutes allow the Department of Economic Security to file a Petition to Terminate Parental Rights after receiving authorization from the Court in a dependency proceeding. The private Petition to Terminate Parental Rights was granted, and the father appealed.

     The father argued that counsel for the minor child was precluded from filing a private Petition to Terminate Parental Rights because the child was already involved in a dependency proceeding, and therefore only termination proceeding filed pursuant to Section 10 of Title 8 would be appropriate. The Appellate Court disagreed. The Court found that nothing in the language of the statutes precluded concurrent private termination actions and dependency proceedings prior to Court authorization of a termination proceeding as part of the dependency. The Court found further support for its position in Ariz. Juv. R. Ct. Rule 64(B), which states that nothing precludes the filing of a private petition to terminate parental rights on cases subject to dependency proceedings filed after July 1998. Therefore, appropriate parties can pursue termination of parental rights despite an ongoing dependency proceeding.

     The Court further affirmed that the father's rights to due process and equal protection had not been violated, that there was sufficient evidence of abandonment, and that there was evidence that termination was in the best interests of the child.

The Impact of the Servicemembers Civil Relief Act (SCRA) on Family Law Proceedings

    The Servicemembers Civil Relief Act (SCRA) is a federal statute that was signed into law on December 19, 2003.  It provides certain protections to members of the military and active-duty National Guard and Reserve personnel involved in court proceedings.  Some of the SCRA protections have a direct impact on family law matters.  The provisions of SCRA most likely to affect family law proceedings are discussed below.

     The SCRA requires a civil court or an administrative agency to enter an order delaying legal proceedings for at least ninety days when the defendant is in the military service, and the defendant's military duties negatively impacts that person's ability to prepare for the legal proceeding.  Additionally, the court or agency must believe that the defendant may have a valid defense that cannot be presented without the defendant's presence, or the defendant's attorney must be unable to contact the service member defendant.

     The SCRA also allows a defendant service member to request a ninety day delay in civil or administative legal proceedings.  The service member must make this request by submitting two documents: (1) a letter or other communication that states how the service member's current military duties negatively impact the service member's ability to appear and prepare for the proceeding, and (2) a letter or communication from the service member's commanding officer that states that the service member's current military duties preclude participation in a court proceeding and that the service member is not authorized to take military leave at the time.

     Most family law proceedings are civil legal matters.  The delay provisions in SCRA therefore apply, and may be used by a member of the military or an active-duty National Guard or Reserve member to delay many family law proceedings for at least ninety days. Additional delays can also be requested by the service member.

     The provisions of SCRA also impact a Decree of Dissolution of Marriage that is entered by default.  A Decree may be entered by default when the Respondent is served, but does not enter an appearance in the dissolution matter.  Before the Court can enter a default Decree of Dissolution of Marriage, it must first determine whether the Respondent is in the military service.  If the court determines that the Respondent is in fact a member of the military, the court must appoint an attorney for the Respondent before the default Decree of Dissolution of Marriage may be entered.   If the court cannot determine whether the Respondent is in the military, the court will require the person asking for the Decree of Dissolution of Marriage to be entered by default to post a bond to indemnify the Respondent if the court believes the Respondent may have a defense that requires the Respondent's presence, or if the attorney appointed to represent Respondent's interests cannot contact the service member.  In this situation, the bond will be required before the court will enter a default Decree of Dissolution of Marriage.