Understanding Arizona Revised Statutes: 2013

Thursday, July 25, 2013

Relocation with Child

This one is about relocating (moving) with your child. Currently if you live in the same state as the other parent and you have joint legal decision-making rights then you must give the other parent 60 days written notice if you plan to move out of the state or more than 100 miles within the state. There recently was a bill up for vote to change this and I will post the info on that bill in the next post.

Title 25 Chapter 4 Article 1
25-408. Rights of each parent; parenting time; relocation of child; exception; enforcement; access to prescription medication and records

A. If by written agreement or court order both parents are entitled to joint legal decision-making or unsupervised parenting time and both parents reside in the state, at least sixty days' advance written notice shall be provided to the other parent before a parent may do either of the following:

1. Relocate the child outside the state.

2. Relocate the child more than one hundred miles within the state.

B. The notice required by this section shall be made by certified mail, return receipt requested, or pursuant to the Arizona rules of family law procedure. The court shall sanction a parent who, without good cause, does not comply with the notification requirements of this subsection. The court may impose a sanction that will affect legal decision-making or parenting time only in accordance with the child's best interests.

C. Within thirty days after notice is made the nonmoving parent may petition the court to prevent relocation of the child. After expiration of this time any petition or other application to prevent relocation of the child may be granted only on a showing of good cause. This subsection does not prohibit a parent who is seeking to relocate the child from petitioning the court for a hearing, on notice to the other parent, to determine the appropriateness of a relocation that may adversely affect the other parent's legal decision-making or parenting time rights.

The non-relocating parent has the right to challenge the move through a court process. It is the duty of the moving parent to show good cause for the move in court if the other parent challenges the move.

D. Subsection A of this section does not apply if provision for relocation of a child has been made by a court order or a written agreement of the parties that is dated within one year of the proposed relocation of the child.

E. Pending the determination by the court of a petition or application to prevent relocation of the child:

1. A parent with sole legal decision-making or a parent with joint legal decision-making and primary residence of a child who is required by circumstances of health or safety or employment of that parent or that parent's spouse to relocate in less than sixty days after written notice has been given to the other parent may temporarily relocate with the child.

2. A parent who shares joint legal decision-making and substantially equal parenting time and who is required by circumstances of health or safety or employment of that parent or that parent's spouse to relocate in less than sixty days after written notice has been given to the other parent may temporarily relocate with the child only if both parents execute a written agreement to permit relocation of the child.

F. The court shall determine whether to allow the parent to relocate the child in accordance with the child's best interests. The burden of proving what is in the child's best interests is on the parent who is seeking to relocate the child. To the extent practicable the court shall also make appropriate arrangements to ensure the continuation of a meaningful relationship between the child and both parents.

G. The court shall not deviate from a provision of any parenting plan or other written agreement by which the parents specifically have agreed to allow or prohibit relocation of the child unless the court finds that the provision is no longer in the child's best interests. There is a rebuttable presumption that a provision from any parenting plan or other written agreement is in the child's best interests.

H. In determining the child's best interests the court shall consider all relevant factors including:

1. The factors prescribed under section 25-403.

2. Whether the relocation is being made or opposed in good faith and not to interfere with or to frustrate the relationship between the child and the other parent or the other parent's right of access to the child.

3. The prospective advantage of the move for improving the general quality of life for the custodial parent or for the child.

4. The likelihood that the parent with whom the child will reside after the relocation will comply with parenting time orders.

5. Whether the relocation will allow a realistic opportunity for parenting time with each parent.

6. The extent to which moving or not moving will affect the emotional, physical or developmental needs of the child.

7. The motives of the parents and the validity of the reasons given for moving or opposing the move including the extent to which either parent may intend to gain a financial advantage regarding continuing child support obligations.

8. The potential effect of relocation on the child's stability.

I. The court shall assess attorney fees and court costs against either parent if the court finds that the parent has unreasonably denied, restricted or interfered with court-ordered parenting time.

J. Pursuant to section 25-403.06, each parent is entitled to have access to prescription medication, documents and other information about the child unless the court finds that access would endanger seriously the child's or a parent's physical, mental, moral or emotional health.

Tuesday, May 28, 2013

Violating Parenting Time Rights

Some important things to understand. No matter what order is in place for Legal Decision Making rights neither parent has the right to deny the other parent entitled to Parenting Time their court ordered time with the child without a legal reason. Also, non payment of child support is not a legal reason to deny court ordered parenting time. You cannot decide you will deny parenting time as a form of punishment for anything the other parent says or does. The only time you can deny parenting time is if you have a reasonable belief that your child would be in emanate danger with the other parent but you must take the proper (legal) steps when this is the issue. Having proof is very important in those cases and filing for an emergency hearing (or change in parenting plan) is something that must occur. (I recommend involving the police if you truly feel your child is in danger)

The following is the Arizona Revised Statute about what can be expected if you violate the other parents right to parenting time.

Title 25 Chapter 4 Article 1
25-414. Violation of visitation or parenting time rights; penalties

A. If the court, based on a verified petition and after it gives reasonable notice to an alleged violating parent and an opportunity for that person to be heard, finds that a parent has refused without good cause to comply with a visitation or parenting time order, the court shall do at least one of the following:

1. Find the violating parent in contempt of court.

2. Order visitation or parenting time to make up for the missed sessions.

3. Order parent education at the violating parent's expense.

4. Order family counseling at the violating parent's expense.

5. Order civil penalties of not to exceed one hundred dollars for each violation. The court shall transmit monies collected pursuant to this paragraph each month to the county treasurer. The county treasurer shall transmit these monies monthly to the state treasurer for deposit into the alternative dispute resolution fund established by section 12-135.

6. Order both parents to participate in mediation or some other appropriate form of alternative dispute resolution at the violating parent's expense.

7. Make any other order that may promote the best interests of the child or children involved.

B. Within twenty-five days of service of the petition the court shall hold a hearing or conference before a judge, commissioner or person appointed by the court to review noncompliance with a visitation or parenting time order.

C. Court costs and attorney fees incurred by the nonviolating parent associated with the review of noncompliance with a visitation or parenting time order shall be paid by the violating parent. In the event the custodial parent prevails, the court in its discretion may award court costs and attorney fees to the custodial parent.

Thursday, May 23, 2013

Failure to Pay Child Support

There are many ways in which the courts can punish a person for not pay their child support. I'm only going to cover a few. One important thing to understand when child support and parenting time are an issue. Parenting time is a completely separate issue from child support. One parent CANNOT deny the other parent their time with the child based on not paying their child support. The reverse is also true, paying child suport does not give you more rights to see your child.

Title 25 Chapter 5 Article 1
25-511. Failure of parent to provide for child; classification

A. Except as provided in section 25-501, subsection F, any parent of a minor child who knowingly fails to furnish reasonable support for the parent's child is guilty of a class 6 felony.

B. It is an affirmative defense to a charge of a violation of subsection A of this section that the defendant has complied with a valid court order that was in effect for the time period charged and that set forth an amount of support for the minor child or was unable to furnish reasonable support. Inability to furnish reasonable support is not a defense if the defendant voluntarily remained idle, voluntarily decreased his income or voluntarily incurred other financial obligations.

C. The trier of fact, in determining whether the defendant has failed to furnish reasonable support, shall consider all assets, earnings and entitlements of the defendant and whether the defendant has made all reasonable efforts to obtain the necessary funds. On a showing of previous employment or lack of a physical or mental disability precluding employment, the trier of fact may infer that the defendant is capable of full-time employment at least at the federal adult minimum wage. This inference does not apply to noncustodial parents who are under the age of eighteen and who are still attending high school.

In this state if you are ordered to pay child support there is no excuse for not paying it. It does not matter if you can't pay your other bills. The law considers child support to be your top priority "bill".

25-518. Child support arrearage; license suspension; hearing

A. A court shall send a certificate of noncompliance to the board or agency ordering the suspension or denial of a driver license or recreational license if the court finds from the evidence presented at a hearing to enforce a child support order that the obligor has wilfully failed to pay child support, continues after notice pursuant to section 25-517, subsection A to wilfully fail to pay child support and is at least six months in arrears.

B. If the obligor has complied with the support order since the suspension or denial, the obligor may petition the court for a hearing. If the obligor establishes at the review hearing that the obligor is in compliance with the support order or a court ordered plan for payment of arrearages, the court shall send a certificate of compliance to the board or agency. Except for licenses issued under title 17, the obligor may then apply for license reinstatement and shall pay all applicable fees.

C. In a title IV-D case, the department or its agent may file with the clerk of the superior court an affidavit indicating that the obligor is in compliance with the support order or the child support obligation. Within five business days after the affidavit is filed, the clerk shall send a notice of compliance to the obligor by first class mail. The clerk shall send a copy of the notice of compliance to the department and the licensing board or agency.

D. Except for licenses issued under title 17, the board or agency shall suspend or deny the license of the licensee within thirty days after receiving the notice of noncompliance from the court. The board or agency shall not lift the suspension until the board or agency receives a certificate of compliance from the court. Notwithstanding section 41-1064, subsection C and section 41-1092.11, subsection B, the board or agency is not required to conduct a hearing. The board or agency shall notify the department in writing or by any other means prescribed by the department of all suspensions within ten days after the suspension. The information shall include the name, address, date of birth and social security number of the licensee and the license category.

E. A certificate of noncompliance without further action invalidates a license to take wildlife in this state and prohibits the obligor from applying for a license issued by an automated drawing system under title 17. The court shall send a copy of the certificate of noncompliance to the department of economic security, and the department of economic security shall notify the Arizona game and fish department of all obligors against whom a notice of noncompliance has been issued and who have applied for a license issued by an automated drawing system.

F. Notwithstanding this section, the title IV-D agency or its agent may send a certificate of noncompliance to a board or agency to order it to suspend an obligor's professional or occupational license if the obligor:

1. Has wilfully failed to pay child support, continues after notice pursuant to section 25-517, subsection D to wilfully fail to pay child support and is at least six months in arrears.

2. Requested an administrative review and the determination confirms that the obligor is required to pay child support and has wilfully failed to pay and that either the obligor did not request a hearing on the determination or the determination was upheld after a hearing.

3. Failed to respond to the notice pursuant to section 25-517, subsection D.

G. If the obligor has paid all arrearages or if the obligor has entered into a written agreement with the title IV-D agency or its agent, the title IV-D agency shall issue a notice of compliance to the licensing board or agency.

You can lose your drivers license and/or recreational license for not paying your child support.

25-521. Levy; seizure of property for collection of support debt; definitions

A. If there is a court ordered judgment or if the obligor is in arrears in an amount equal to twelve months of support, the department may issue a levy and collect the amount owed by the obligor by levy on all property and rights to property not exempt under federal or state law.

B. The levy extends only to property possessed and obligations existing at the time of service or within twenty-one days thereafter, except as to an account held in a financial institution in which case the levy extends only to property possessed and obligations existing at the time of service. On receipt of a notice of levy, a person in possession of property or an interest in property subject to levy shall seize and hold nonexempt property until that person receives from the department a notice of surrender of property or a notice of release of levy. Within three days after receipt, the person served with the notice of levy shall notify the obligor and any other individual or entity known or believed to have an interest in the property that a levy has occurred. The notice shall specify the amount demanded and shall contain, in the case of a seizure of personal property, an account of the property levied on, and in the case of real property, a description with reasonable certainty of the property levied on. The person served with the levy, the obligor or other persons known or believed to have an interest in the property may make a written request for an administrative review to contest the levy within fifteen days after the date of mailing of the notice. The administrative review shall be conducted pursuant to section 25-522, subsection D. The administrative review shall include a determination of the interest of the obligor in the property subject to levy, including the obligor's contributions to any property held by the community. If the request for administrative review is based on a mistake in identity, the department shall conduct the review within two business days. The administrative review shall be conducted pursuant to section 25-522, subsection E.

C. Any person in possession of property, or obligated with respect to property or rights to property subject to levy, on which a levy has been made, on demand by the department shall surrender the property or right to property to the department.

D. A person who fails or refuses to surrender any property or rights to property, subject to levy, on demand by the department, is liable in an amount equal to the value of the property or rights to property not surrendered, but not exceeding the amount of the past due support for which the levy has been made.

E. If any property or right to property on which a levy has been made under subsection A of this section is not sufficient to satisfy the claim of the department, the department, as often as necessary, may proceed to levy in like manner on any other property subject to levy of the obligor owing support, until the amount due is paid in full.

F. In any case in which the department may levy on property or rights to property, the department may seize and sell the property or rights to the property whether real or personal, tangible or intangible in the manner prescribed by law. Except as otherwise provided by this section, the notice of sale and sale of property seized by the department shall be conducted in the manner and the time provided in title 12, chapter 9, article 7, relating to the sale of property under execution. Real property may be redeemed in the manner provided by title 12, chapter 8, article 11. The department shall notify the obligor of the date, time and location of the sale. The notice shall be given in person, left at the dwelling or usual place of business of the obligor or sent by first class mail to the obligor's last known address, at least ten days before the day of the sale. If the property or right to property is perishable, the department shall give notice of the sale to the obligor in the manner and within the time limits that are reasonable considering the character and condition of the property.

G. A person who is in possession of or obligated with respect to property or rights to property subject to levy on which a levy has been made and who, on demand by the department, surrenders the property or rights to property to the department is discharged from any obligation or liability to the obligor with respect to the property or rights to property from the surrender on payment.

H. A levy issued pursuant to this section has the same force and effect as a writ of garnishment, execution or attachment issued by the superior court.

I. For purposes of this section:

1. "Account" means a demand deposit account, checking or negotiable withdrawal order account, savings account, time deposit account or money market mutual fund account.

2. "Levy" includes the power to restrain and seize by any legal means.

3. "Person" includes an individual or an officer, employee or agent of a corporation, an officer, employee or elected official of this state or its political subdivisions, or any agency or instrumentality of this state or the federal government or its political subdivisions, or a member or employee of a partnership, who as such officer, employee, agent, elected official or member is under a duty to surrender the property or rights to property, or to discharge the obligation.

If you exceed 12 months of non payment the courts can take your property.

25-681. Child support arrest warrant; definition

A. In any action or proceeding pursuant to section 25-502, on motion of a party or on its own motion the court may issue a child support arrest warrant if the court finds that all of the following apply to the person for whom the warrant is sought:

1. The person was ordered by the court to appear personally at a specific time and location.

2. The person received actual notice of the order, including a warning that the failure to appear might result in the issuance of a child support arrest warrant.

3. The person failed to appear as ordered.

B. The judicial officer shall order the child support arrest warrant and the clerk shall issue the warrant. The warrant shall contain the name of the person to be arrested and other information required to enter the warrant in the Arizona criminal justice information system. The warrant shall command that the named person be arrested and either remanded to the custody of the sheriff or brought before the judicial officer or, if the judicial officer is absent or unable to act, the nearest or most accessible judicial officer of the superior court in the same county. A warrant that is issued pursuant to this section remains in effect until it is executed or extinguished by the court.

C. The court shall determine and the warrant shall state the amount the arrested person shall pay in order to be released from custody.

D. For the purposes of this article, "child support arrest warrant" means an order that is issued by a judicial officer in a noncriminal child support matter and that directs a peace officer in this state to arrest the person named in the warrant and bring the person before the court.

You can be arrested for not paying your child support or failing to appear at a child support hearing.

Wednesday, May 22, 2013

Child Support

Title 25 Chapter 4 Article 1
25-403.09. Child support

A. For any parenting time order entered under this article, the court shall determine an amount of child support in accordance with section 25-320 and guidelines established pursuant to that section.

B. An award of joint legal decision-making or a substantially equal parenting time plan does not diminish the responsibility of either parent to provide for the support of the child.

Child support is typically calculated based on each Legal parents' incomes and the amount of time each parent spends with the child. The parent with the larger income usually ends up paying some type of child support. It is very important for parents to understand that child support is an important part of ensuring your child has everything he/she needs. Its the number one obligation of any parent, including the parent the has the child majority of the time. Even if you aren't "paying child support" you are still required to finacially support the needs of your child. You need money in order to provide food, shelter, and clothing. Below is a link to the Arizona Judicial Branch Child Support Calculator. It will give you an idea of what you can expect when a judge orders child support for your child.

http://www.azcourts.gov/familylaw/2011_CALC.aspx

Sunday, May 19, 2013

Definitions

The following is definitions from the Arizona Revised Statutes that every parent should understand so they know where they stand. Especially for divorced or soon to be divorced parents. Its fairly all easy to understand but look for this red type for my input on each definition.

Title 25 Chapter 4 Article 1
25-401. Definitions

In this chapter, unless the context otherwise requires:

1. "In loco parentis" means a person who has been treated as a parent by a child and who has formed a meaningful parental relationship with a child for a substantial period of time.
(for example: a step-parent that has been a parent to the child, grandparents who have been raising the child)

2. "Joint legal decision-making" means both parents share decision-making and neither parent's rights or responsibilities are superior except with respect to specified decisions as set forth by the court or the parents in the final judgment or order.

(parents are responsible for coming to mutual agreements on things that are not previously court ordered like what doctors the child should see, what school they attend, whether or not they will participate in religious activities, child care facilities)

3. "Legal decision-making" means the legal right and responsibility to make all nonemergency legal decisions for a child including those regarding education, health care, religious training and personal care decisions. For the purposes of interpreting or applying any international treaty, federal law, a uniform code or the statutes of other jurisdictions of the United States, legal decision-making means legal custody.
(this one just defines what types of decisions fall under legal decision-making, legal decision-making does NOT give either parent the right to tell the other parent how to discipline or what type of daily schedule they keep with the child)

4. "Legal parent" means a biological or adoptive parent whose parental rights have not been terminated. Legal parent does not include a person whose paternity has not been established pursuant to section 25-812 or 25-814.
(very important for fathers of children born out of wedlock to understand. if you have not had your paternity established you have no legal rights to your child as you are NOT a legal parent. if you want to ensure you ability to be in your child's life make sure you take proper steps to establish yourself as a legal parent)

5. "Parenting time" means the schedule of time during which each parent has access to a child at specified times. Each parent during their scheduled parenting time is responsible for providing the child with food, clothing and shelter and may make routine decisions concerning the child's care.
(there has been a change in recent years as to what they term the time each LEGAL parent has with their child. in the past it was called visitation when the parent with the lesser amount of time with the child had the child. now no matter how much time each legal parent has with the child is call Parenting Time. the reason for this change was to remind parents on both sides of the coin that a parent's time with a child isn't just for them to "visit", it is the time in which the parent is a parent to their child. no matter the amount of time with your child you are responsible for doing all that is required of a parent to do while the child is with you.)

6. "Sole legal decision-making" means one parent has the legal right and responsibility to make major decisions for a child.
(in this one only one parent has the right to make the type of decisions defined in #3. it doesn't change the other parent's rights to parenting time. that will be decided by the courts in most cases. however, the parent with sole legal decision-making rights has the ability to allow the other parent with more time than the courts set forth but does not have the right to interfere with the court ordered time the other parent is entitled to. you can give more time but not take any away.)

7. "Visitation" means a schedule of time that occurs with a child by someone other than a legal parent.
(once again LEGAL parents don't "visit" their children, they parent them. that is why visitation is a term for the time when someone who isn't a legal parent has rights to see the child. sometimes this is a grandparent that hasn't been afforded any time with the child by the parents and wishes to have a relationship with the child and uses the court system to make this happen.)

Monday, May 13, 2013

Children Born out of Wedlock

Title 8 Chapter 7 Article 1
8-601. Legitimacy of children born out of wedlock

Every child is the legitimate child of its natural parents and is entitled to support and education as if born in lawful wedlock.

(This one is self explanatory.)

-------------------------------------------------------------------------------------------------------------------------

Currently there is a Bill in the works to give fathers of children born out of wedlock an even footing on parental rights. I am all for this because too many times good fathers are kicked out of their own children's lives and I'm a firm believer that fathers play an important role in children's lives. Here is what the statute will look like should it pass:

AN ACT

amending section 13-1302, Arizona Revised Statutes; Amending title 25, chapter 4, article 1, Arizona Revised Statutes, by adding section 25-403.10; relating to child custody and visitation.

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 13-1302, Arizona Revised Statutes, is amended to read:

13-1302. Custodial interference; child born out of wedlock; defenses; classification

A. A person commits custodial interference if, knowing or having reason to know that the person has no legal right to do so, the person does one of the following:

1. Takes, entices or keeps from lawful custody any child, or any person who is incompetent, and who is entrusted by authority of law to the custody of another person or institution.

2. Before the entry of a court order determining custodial rights, takes, entices or withholds any child from the other parent denying that parent access to any child.

3. If the person is one of two persons who have joint legal custody of a child, takes, entices or withholds from physical custody the child from the other custodian.

4. At the expiration of access rights outside this state, intentionally fails or refuses to return or impedes the return of a child to the lawful custodian.

B. If a child is born out of wedlock, the mother is the legal custodian of the child for the purposes of this section until paternity is established and custody or access is determined by a court. If the father has acknowledged paternity pursuant to section 25-812 or the father's name is stated on the birth certificate pursuant to section 36-334, it is presumed that the father has the same rights regarding custody as the child's mother for the purposes of this section.

C. It is a defense to a prosecution pursuant to subsection A, paragraph 2 of this section if both of the following apply:

1. The defendant has begun the process to obtain an order of protection or files a petition for custody within a reasonable period of time and the order of protection or petition states the defendant's belief that the child was at risk if left with the other parent.

2. The defendant is the child's parent and has the right of custody and the defendant either:

(a) Has a good faith and reasonable belief that the taking, enticing or withholding is necessary to protect the child from immediate danger.

(b) Is a victim of domestic violence by the other parent and has a good faith and reasonable belief that the child will be in immediate danger if the child is left with the other parent.

D. Subsection A, paragraphs 2 and 3 of this section do not apply to a person who is the child's parent if both of the following apply:

1. The person has filed an emergency petition regarding custodial rights with the superior court and has received a hearing date from the court.

2. The person has a good faith and reasonable belief that the child will be in immediate danger if the child is left with the other parent.

E. Subsection A, paragraphs 1 and 2 of this section do not apply to a school official who is responsible for the care and supervision of a child enrolled in a school if either of the following applies:

1. The school official transfers physical control of the child to a person based on the advice or directive of a law enforcement officer, a child protective services officer or a court order that the school official reasonably believes to be valid.

2. The school official transfers physical control of a child to the parent, an adult living with the child, a person designated by the parent to take physical control of the child in the event of an emergency, a law enforcement officer or a child protective services officer.

E.F. A violation of this section is:

1. A class 3 felony if committed by a person other than the parent or agent of the parent or custodian or agent of the custodian.

2. Notwithstanding paragraph 3 of this subsection, a class 4 felony if the child or incompetent person is taken, enticed or kept from lawful custody out of this state by the parent or agent of the parent or custodian or the agent of the custodian.

3. A class 6 felony if committed by a parent or agent of the parent or custodian or agent of the custodian.

4. A class 1 misdemeanor if the child or incompetent person is voluntarily returned without physical injury by the parent or defendant or the agent of the parent or defendant no later than forty-eight hours after the parent or defendant takes, entices or keeps from lawful custody the child or incompetent person.

Sec. 2. Title 25, chapter 4, article 1, Arizona Revised Statutes, is amended by adding section 25-403.10, to read:

25-403.10.Children born out of wedlock; custody

Unless determined otherwise pursuant to a child custody proceeding brought pursuant to this chapter or chapter 8 of this title, if the parents of a child born out of wedlock acknowledge the father's paternity pursuant to section 25-812 or the father's name is stated on the birth certificate pursuant to section 36‑334, it is presumed that the father has the same rights regarding custody as the child's mother.