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Arizona Divorce 101 – How Does it All Work?

Arizona Divorce 101 – How Does it All Work?

One of the questions most often asked when someone walks into our offices to pursue a divorce is; “How does this all ACTUALLY work?”.  The more we are asked this question, the more we realize that there is a lack of plain information for the average person wanting to know about the basics of divorce in Arizona.

So we will attempt to put it all together here, in a nutshell, so that someone who wants to understand the basics, the ideal timeline, the requirements, can walk away better informed.

Here at Randle Palmer & Bernays we do not want to have clients hire us who in fact do not need our services. We regularly send people away with the “self-service” forms the court provides (they charge $10,  we do it for free) if the matter they are facing is straight-forward and can be handled without the help of an attorney. We do not subscribe to the “every case would be better if a lawyer was involved” theory, rather, we prefer to maintain our credibility and integrity through every action, even if it means we do not get hired.

This brief outline is not meant to substitute for legal guidance and is not legal advice. It is meant to give a general road-map of the process. Depending on the complexity of your situation a divorce can be finalized in as little as 61 days in Arizona, or can stretch on for over a year in the worst cases.

In that vein, please see this fairly straight-forward explanation of the divorce process in Arizona.

The Basic Principles in Divorce:

  • Arizona is a purely no-fault divorce state, which means that neither spouse has to prove blame or responsibility to end the marriage. The only question that must be answered is whether the marriage is “irretrievably broken”, which simply means that there is no chance that the spouses want to continue the marriage. A.R.S. §25-312 (Unless it is a covenant marriage)
  • Arizona is a community property state. This means in short, each party is “owner” of half of everything acquired during the marriage. Real property, retirements, debt, etc… A.R.S. §25-211(There are some exceptions).
  • When it comes to the kids; The Court is supposed to design a plan “that maximizes their respective parenting time. The court shall not prefer a parent’s proposed plan because of the parent’s or child’s gender. A.R.S. §25-403.02

The Minimum Requirements:

  • One party must have lived in the County they file in for the previous 90 days consecutively.
  • If there are children in common (the parties are the biological parents) the children must have resided in the County of filing for at-least 6 months prior to the date you file.
  • Because Arizona is a “no-fault” state all that must be “proven” is that the marriage is “irretrievably broken”, which simply means that there is no chance that the spouses want to continue the marriage.

The First Steps:

In order to begin a divorce in the state of Arizona, one of the spouses (the Petitioner) must file a Petition with the Clerk of the Superior Court in the county of residence of either spouse (filing fees vary from county to county). The petition asks the court to legally end the marriage and to issue the orders that are necessary to deal with the spouses’ property, debts, child support, custody and alimony. Generally, the court will not give a spouse anything that isn’t requested in the petition.

When the petitioner files the petition he or she must also file:

  • Summons
  • A Notice of Right to Convert Health Insurance
  • Preliminary Injunction
  • Notice to Creditors
  • Domestic Relations or Family Court Cover Sheet

If there are children involved the Petitioner must also file:

  • Affidavit Regarding Minor Children
  • Order and Notice Regarding the Parent Information Program

The Petitioner must create three copies of the aforementioned forms.

  • The original must go(be filed) to the Clerk of the Superior Court
  • The next to his or her spouse
  • The final copies are for the Petitioner’s records.

Notice to the Other Party:

The Constitution guarantees that in both the 5th and 14th Amendments that a person be given notice before a lawsuit can be filed against them. This applies in divorce actions: In order to let your spouse know that you are filing for divorce, copies of the above forms (the summons, the petition etc.) must be served within 120 days of the filing of the petition.

The other party is not “on notice” and thus the divorce action isn’t really “live” until one of the accepted forms of service has been completed and the notice of such is filed with the Clerk of the Court.

To Respond or Not to Respond:

This is where the road begins to fork; The Respondent has 20 days to respond if they live in the same state the petition was filed in and 30 days if they live out of state.

If the Respondent does nothing, you can, and should, file for a default. Provided the Respondent has been appropriately served, and they do not respond, your petition will likely be granted in its entirety and the divorce will be done. This is subject to some specific rules and requirements (like most of the stuff in this process).

However if a response is filed, the case will move forward to the next steps.

The 60 Day Waiting Period

In the state of Arizona, a divorce cannot be granted until at least 60 days have passed since the petitioner served his or her spouse. Once this waiting period is over, if both couples agree on the terms of the divorce, or if proceeding by default, then the divorce can be finalized rather quickly. However, if the couple cannot agree on the terms, than the case will go to court and a judge will settle the terms.

Curveballs and Detours

TEMPORARY ORDERS: Because some cases require significant research, negotiation or, in the worst cases full-blown trials, the court can establish “rules” for the in-between times. This is done at a “mini-trial” where the court hears evidence and argument and then decides things like: Parenting Time, Child Support, Spousal Maintenance (alimony), who stays in the home, who pays the bills, etc. These rules last until a final agreement, order, or decree is in place.

CHILD INTERVIEWS: In some cases it is appropriate to ask the Court to have the child(ren) interviewed to ascertain how they feel about things. Please note that the Court is not obligated to allow this, and generally decides based on the age and maturity of the specific child.

Mediation

In any case where there are minor children involved the Courts generally require that the parties attend mediation to try and work out an agreement on issues specific to legal decision making and parenting time ONLY. No agreements are required, but as a general rule the case will go much smoother in the long run if the parties can agree on at least a few things during this process. Mediation is done without the lawyers or judge. A trained mediator works with the parties in a neutral environment to maximize the potential for agreements to be made.

Disclosure & Discovery

The rules that govern the divorce process outline the very specific things that each party can ask the other party to provide in the way of information and documents. Many of these things are mandatory to provide, such as a financial affidavit, and depending on the issues involved, this process can be very complex and significantly stretch out the length of the divorce.

Setting For Trial

When all the disclosure/discovery has been completed, or is very close to being completed, the case can be set for a trial. When this happens the Court will set a date for the trial and some other specific events. These are:

Settlement Conference

This is a meeting between the parties, their lawyers, and a neutral 3rd party (usually a Judge Pro Temp) where the issues are worked on and any agreements are put on the record to narrow the scope of what will be argued at trial.

Final Pre-Trial Conference

This is a short hearing in front of the Judge where the issues for trial are nailed down and any last minute administrative details are worked out.

Trial

This is largely self-explanatory but trials can last anywhere from an hour to several days depending on the complexity, amount of issues, evidence to be presented, witnesses, etc.

Final Decree

This is the piece of paper (several pages actually) that finally outlines the terms, conditions, and rules of the divorce moving forward. The decree details property division, child support, spousal support, parenting time, legal-decision making, returning maiden names, terms for future enforcement or changes, and any other final or binding orders.

If you have questions, or think it may be too much for you to handle on your own, call us for a FREE consultation at (520) 327-1409 today.

Staying For the Kids

Staying For the Kids

We often hear from clients that the reason they are still in a bad marriage is “for the kids”. While the logic is understandable, the reality is that this is actually much worse for everyone involved, Especially the kids!

The experts agree that what children need and want more than anything is stability and calm. If the “normal” state of the home is chaos and fighting the damage can be long lasting and much worse than working through a divorce.

However, creating a “new normal” where the marriage ends, but so does the cycle of anger and venom, can significantly improve the quality of life for everyone in the family, ESPECIALLY THE KIDS!

If you are in an unhealthy marriage, and are looking for a better way for everyone involved, give us a call today for a free consultation at (520) 327-1409

The 10 Documents You Need to Gather to Prepare For a Divorce

The 10 Documents You Need to Gather to Prepare For a Divorce

When someone is considering ending a marriage, they often start by gathering the information they think they need….

Even with the best of intentions most people don’t get the things they will actually need to provide to either their lawyer, the other party, or the Court. Some lawyers would have you believe that the information you need to gather is a secret, or is a matter of their specific expertise, and that just isn’t true.

We want to take the mystery out of the process, so with that in mind, here are the 10 most important documents to gather in preparation of a divorce. This list is not all-inclusive, nor is it exhaustive, but it is the minimum you should gather to give the case an easy start.

1. Financial Documents in Divorce

Specifically – proof of income from all sources, completed tax returns, W-2 forms, 1099 forms, and K-1 forms, for the past two (2) calendar years, and year to date income information for the   current calendar year, including, but not limited to, year-to-date pay stubs, salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest,  trust income, annuities, capital gains, social security benefits, worker’s compensation benefits, unemployment insurance benefits, disability insurance benefits, recurring gifts, prizes, and spousal maintenance.

  1. Proof of court-ordered child support and spousal maintenance actually paid in any case other than this one;
  2. Proof of all medical, dental, and vision insurance premiums paid for any child listed or referenced in the petition;
  3. Proof of any child care expenses paid for any child listed or referenced in the petition;
  4. Proof of any expenses paid to private or special schools or other particular education needs of a child listed or referenced in the petition; and
  5. Proof of any expenses paid for the special needs of a gifted or handicapped child listed or referenced in the petition.

2. Property Paperwork for divorce

Unless you and the other party have entered into a written agreement disposing of all property issues, or no property is at issue, each of you must provide to the other the following information:

  1. Copies of all deeds, deeds of trust, purchase agreements, escrow documents, settlement sheets, and all other documents that disclose the ownership, legal description, purchase price and encumbrances of all real property owned by either party;
  2. Copies of all monthly or periodic bank, checking, savings, brokerage and security account statements in which either of you has or had an interest for the period commencing six (6) months prior to the filing of the petition and through the date the information was provided to the other party;
  3. Copies of all monthly or periodic statements and documents showing the value of all pension, retirement, stock options, and annuity balances, including Individual Retirement Accounts, 401 (k) accounts, and all other retirement and employee benefits and accounts in which you have or had an interest for the period commencing six (6) months prior to filing of the petition and through the date of the disclosure, or if no monthly or quarterly statements are available for this time period, the most recent statements or documents that disclose the information;
  4. Copies of all monthly or periodic statements and documents showing that cash surrender value, face value, and premiums charged for all life insurance policies in which either party has an interest for the period commencing six (6) months prior to filing of the petition and through the date of the disclosure, or if no monthly or quarterly statements are available for this time period, the most recent statements or documents that disclose the information;
  5. Copies of all documents that may assist in identifying or valuing any item of real or personal property in which you or the other party have or had an interest for the period commencing six (6) months prior to the filing of the petition, including any documents that the party may rely upon in placing a value on any item of real or personal property.
  6. Copies of all business tax returns, balance sheets, profit or loss statements, and all documents that may assist in identifying or valuing any business or business interest for the last two (2) completed calendar or fiscal years with respect to any business or entity in which any party has or had an interest; and
  7. A list of all items of personal property, including, but not limited to, household furniture, furnishings, antiques, artwork, vehicles, jewelry and similar items in which any party has an interest, together with the party’s estimates of current fair market value (not replacement value) for each item.

3. Debts

Unless you and the other party have entered into an agreement disposing of all debts issues, you will need to provide the following information:

  1. Copies of all monthly or periodic statements and documents showing the balances owing on all mortgages, notes, liens, and encumbrances outstanding against all real property and personal property in which the path has or had in interest for the period commencing six (6) months prior to the filing of the petition and through the date of disclosure, or if no monthly or quarterly statements are available during this time period, the most recent statements or documents that disclose the information; and
  2. Copies of all credit card statements and debt statements for all months for the period commencing six (6) months prior to the filing of the petition and through the date of disclosure.

4. Health/Dental/Vision Insurance Plans

With premium breakdowns for all plan options.

5. School Records

This is specifically for the kids common to the parties.

6. Employment Records

(to include your schedule, length of employment, position etc.).

7. Text or Email

Communication With the Opposing Party

That would benefit you. Remember that this sword cuts both ways, and the Court is far from stupid, they have seen the old “only show 1/2 of the conversation” trick and the other party will likely bring the whole record.

8. Any Police Reports, Orders of Protection or Court Records

Concerning you, the opposing party or children. Domestic violence, abuse, neglect, etc.

9. Disclosure of Witnesses

You will need to provide the names, addresses and telephone numbers of any witness whom you expect to call to trial, along with a statement fairly describing the substance of each witness’s expected testimony. You have to provide this information to the other party at least sixty (60) days before trial, unless a different deadline is ordered by the court.

10. Continuing Duty to Disclose

You have duty to make additional or amended disclosures whenever new or different information is discovered or revealed.

Benefits, Are They Community Property?

Benefits, Are They Community Property?

If you or your spouse are a retired service member that is divorced or divorcing, I have some news for you: in Arizona, the benefits that are received for military retirement  can, and likely will be divided, in part, between you and your (soon-to-be) former spouse.  That is because Arizona is a Community Property State, which in a nutshell means that any property interest acquired by either spouse during the time of the marriage belongs to both people and at divorce can be split in half. 

“But what does this have to do with military retirement?” I’m glad you asked. Retirements and pensions are viewed by Arizona as a property during a divorce…  I can see you connecting the dots:  If retirement is property, and that “property” was acquired through military service while we were married, then each party can claim a property interest in the retirement.

If you did not know about this before, this news may be a bit troubling, but I have some good news that is disguised as a headache. Just like every time you or your spouse dealt with S-1 (Admin clerks), nothing that the military does is simple.  The benefits that you or your spouse, do or will eventually, receive as a retired Veteran can be: Military Retirement Benefits; TSP disbursements; Medical Retirement; VA Disability Compensation; Temporary Early Retirement; Super Secret Squirrel Hush Money,…the list goes on. 

Just like there are many ways for Uncle Sam to say, “thank you for your service”, the Arizona Courts have many ways of telling you that you and your former spouse need to share those benefits.  Division of Community Property-as I spoke about earlier-, Spousal Maintenance (commonly known as alimony), and Child Support.

Understanding Community Property

The importance of exactly how, and what, you get paid cannot be understated, as is fully understanding what an Arizona Court can order that you pay. While Federal and State laws provide protections for the spouses of Veterans (i.e. community property interests in retirements), there are also laws that protect Veterans from losing their much needed and hard earned benefits. 

If you don’t know what laws affect your various benefits from the military, a slick lawyer could have you sign away benefits that you are rightfully entitled to.  Additionally, if you and your lawyer don’t understand the complexities of Military benefits and how Arizona and Federal laws treat each benefit, you won’t be able to protect your rights and claims to them.

The attorneys at the Law Offices of Matthew Randle know how the laws treat your benefits, what you will need to pay, and how to protect your claims to them.  Call us at (520) 327-1409, schedule a consultation, and see how dedicated we are to protecting your interests.

Complex Family Law Issues Within Military and Veteran Families

Complex Family Law Issues Within Military and Veteran Families

We will discuss the various sociological, psychological, and legal matters that can face current and former service members and their families.

A class that focuses on the myriad of issues that face current service members, veterans, and their families. Dissecting the psycho-social and legal implications of military service on the individual service member and those in their families. From Military and VA benefits, to DV and Divorce, someone who has or is serving brings forth significant differences from the average family law participant. With the current studies demonstrating that less than 1 in 100 United States citizens have a direct relationship to someone who has or is serving in the military, and less than 1% of the population ever serving, the vast majority of people have little to know understanding of the challenges and implications of military service.

Understanding Military and Veteran Family Law Issues

Learning Objective #1 – Become familiar with the psycho-social challenges associated with military service and reintegration to society after service.

Learning Objective #2 – Become familiar with the various areas military service can and does intersect with the courts.

Learning Objective #3 – Become familiar with the various resources and options available when military related issues show-up in your work.

List of presenters

  • Matthew Randle, Esq – Former Army Medic (1998-2003) owner and founder of The Law Office of Matthew Randle, which focuses on family law.
  • Andy Meshel, Esq – Lieutenant Colonel in the United States Air Force, UH-60 Helicopter Pilot, Partner/Attorney at The Law Office of Matthew Randle, which focuses on family law.
  • Moderator – TBD – Likely Paul Bennett

Concurrent Retirement and Disability Pay

Concurrent Retirement and Disability Pay

Most people who served or are/were married to someone who served, have heard that you either draw Military Retirement Benefit or VA Disability Compensation. The basic principle behind this is that you cannot double-dip from both money pots. As such, especially in light of the fact that someone can “waive” their Military Retirement (which is taxable) and get VA Disability (not taxable) instead, to get a couple extra dollars, most people choose the tax-free VA money as soon as it is an option.

The Supreme Court Case

In Arizona, this issue has turned into a major area of concern. Recently the US Supreme Court heard a case from Phoenix where the voluntary election of VA Disability pay reduced a former spouse’s payments from her community property share of her ex-spouses Military Retirement.

While we wait for the Supreme Court to decide what rights a former spouse have in this situation to be compensated for this “loss” of money the question remains, what can someone claim as sole and separate property when dividing Military and VA benefits in a divorce.

All of that being said, Recent policy changes at the federal level have changed the rules; A relatively new program called Concurrent Retirement and Disability Pay (CRDP) now opens the door to receiving both your full military retirement pay AND your VA Disability pay if you qualify…. To make it EVEN BETTER, it is an automatic benefit. You don’t have to apply or jump through hoops, if you are eligible, you get it.

Eligibility for Concurrent Retirement and Disability Pay

You must be eligible for retired pay to qualify for CRDP. If you were placed on a disability retirement, but would be eligible for military retired pay in the absence of the disability, you may be entitled to receive CRDP.

Under these rules, you may be entitled to CRDP if…

  • you are a regular retiree with a VA disability rating of 50 percent or greater.
  • you are a reserve retiree with 20 qualifying years of service, who has a VA disability rating of 50 percent or greater and who has reached retirement age. (In most cases the retirement age for reservists is 60, but certain reserve retirees may be eligible before they turn 60. If you are a member of the Ready Reserve, your retirement age can be reduced below age 60 by three months for each 90 days of active service you have performed during a fiscal year.)
  • you are retired under Temporary Early Retirement Act (TERA) and have a VA disability rating of 50 percent or greater.
  • you are a disability retiree who earned entitlement to retired pay under any provision of law other than solely by disability, and you have a VA disability rating of 50 percent or greater. You might become eligible for CRDP at the time you would have become eligible for retired pay.

Deal with concurrent retirement and divorce at the same time

This benefit can really change things if you are divorced or getting divorced. This extra pay could cause a wrinkle in the property division portion of any divorce where one spouse is eligible for these benefits. The reality is that your ex-spouse and his/her attorney will probably try to take as much of these benefits as they can under current state laws.

If you or your ex is seeking Spousal Maintenance (Alimony) and/or Child Support this increase in income can cause further complications. While military retirement division is an issue of property rights in Arizona, Spousal Support and Child Support both consider the parties gross monthly income, and as such, this program can cause the calculations to change significantly. This is something that in many cases can and will be looked at retroactively and someone may be entitled to arrearages and back-payments in certain scenarios.

Unfortunately, few Judges, and perhaps fewer attorneys, understand the complex relationship between Arizona Family Law and the myriad of different military benefits that you or your ex-spouse may be eligible for. If you don’t have an attorney that understands your specific benefits, you might sign away your money or your ex’s attorney might be able to persuade the Judge to order you to pay money that you shouldn’t have to.

For Legal help with Disability pay and Concurrent Retirement contact us today

The attorneys at the Law Offices of Matthew Randle know how the laws treat your benefits, what you will need to pay, and how to protect your benefits. We will make sure that you keep the benefits that you have earned. Call us at (520) 327-1409, schedule a consultation, and see how dedicated we are to protecting your interests.

Howell Decision

Howell Decision

On Monday, May 17th, 2017, The United State Supreme Court ruled on the case Howell v. Howell, a case The Law Office of Matthew Randle has been following closely, and wrote about earlier.

The case was based on Mr. Howell and Mrs. Howell’s 1991 divorce. The couple was litigating their divorce within 1 year until Mr. Howell’s retirement from the military. In the end the couple’s divorce decree specified that Mrs. Howell would receive half of his military retirement pay. But in 2005, was awarded VA Disability pay that reduced his retirement by $250, which reduced Mrs. Howell’s monthly portion by $125. Claiming that her personal property interest in the retirement had been wrongly reduced Mrs. Howell went back to court, where she argued that, even if Mr. Howell’s retirement pay had been reduced, she should still receive half of what his retirement pay would have been without the disability benefits. The Maricopa Superior Court, Arizona State Appellate Court, and the Arizona State Supreme Court all agreed with her, but on May 15, 2017 the US Supreme Court reversed, siding with Mr. Howell.

What is the Howell decision ruling based on?

The ruling was largely based on the Uniformed Services Former Spouses’ Protection Act, a 1982 federal law governing the disposition of military retirement pay in divorces, and Mansell v. Mansell, a 1989 Supreme Court case interpreting that statute.

The Uniformed Services Former Spouses’ Protection Act makes clear that state courts can divide up “disposable retired pay,” which it defines as the service member’s retired pay, minus any portion of that pay waived in favor of disability benefits. And in Mansell v. Mansell, the court ruled that the act does not permit state courts to treat retirement pay that has been waived to receive veterans’ disability benefits as something that can be divided.

The justices agreed with Mr. Howell and his argument that his VA Disability Pay was non-divisible, even after the divorce decree was finalized. The Court explained that under federal law state courts simply lack the authority to divide up Mr. Howell’s disability benefits, even if it means that Mrs. Howell winds up receiving less money than she might have originally. Further the Court clarified that the state courts can’t get around the restrictions imposed by federal law by characterizing the award to Mrs. Howell as an order to Mr. Howell to “reimburse” her for the money that she no longer receives.

Justice Breyer opinion on the Howell Decision

In his opinion Justice Breyer acknowledged that the federal statute and today’s ruling could make things harder for former military spouses like Mrs. Howell. Explaining the potential implications of this ruling Justice Breyer suggested that, going forward, state courts can try to account for the possibility that a veteran could later waive some part of retirement pay in favor of disability benefits through some other community property or support offset.

An important note for retired service members and their former spouses is that this case does not impact those who are retired and receive VA Disability compensation for being rated 50% disabled or more. Because of the Concurrent Benefit program, which we wrote about here, a retired service member who is both retired and rated at 50% or more, will receive BOTH amounts in full (VA and Retirement). As such the former spouse’s portion of a community property award would not be reduced by electing VA Disability pay.

Contact Randle, Palmer, & Bernays for legal help today

As always, it is of the utmost importance that if either party in a divorce is eligible for any Military or VA benefits you hire counsel that understands and knows the rules so that your rights are protected. The Law Office of Randle, Palmer, & Bernays is considered a Subject Matter Expert in this area and is here to help you through the tough times.

Absent Parents

Absent Parents

Sadly, many single parents or other family members are raising children without the help of one or both biological parents. Often a non-biological parent is filling the role of an absentee biological parent but cannot legally make decisions or choices because they aren’t the biological parent.

Despite prolonged absence, complete lack of involvement, or zero financial help, those absentee parents still have rights to the child, and the only way to fix that is through court ordered severance of parental rights.

Many people are scared or unaware of how to proceed with cutting off the legal rights for an absent parent. Sometimes the fear of “stirring the pot” or “fanning the flames” keeps them from taking action. Other times the worry is that the child support obligations or arrears will be wiped away if rights are severed.

WHEN TO TERMINATE PARENTAL RIGHTS

  • Absent parent: If a parent has been absent for 6 months or more, the law allows the other, more responsible parent, to petition to terminate parental rights.
  • Not just parents can terminate: in fact, anyone with an interest in the well-being of a child can attempt to terminate one or both parents’ rights.
  • Step-parent: If there is a step-parent who has been there for the child, acting as the parent in every way and wants to adopt, your case is even stronger. How the child views the step parent is very important and the Court will take that into consideration. 
  • Grandparents: If a grandparent or another (non step-parent individual) wants to adopt a child, both parent’s rights have to be terminated first.
  • Child support: many competent parents are hesitant to terminate another parent’s rights because there are child support orders in place. However, termination of parental rights does not necessarily absolve an absent parent of financial responsibility.  The Court can still order a terminated parent to pay child support.  Giving up parental rights specifically to avoid child support does not sit well with the Court.  So no one should be afraid to terminate another parent’s rights due to fear of financial loss.  

Is the other parent of your child largely absent? Are you raising a child without the help of one or both biological parents? Are you or someone else filling the “parent” role for a child who would be able to adopt them? Severing the parental rights of one or both biological parents is a complicated process, one that should be done with the help of a knowledgeable and experienced attorney. Call us for a free consultation today at (520) 327-1409.

How to gain legal rights to a child that isn’t yours biologically

How to gain legal rights to a child that isn’t yours biologically

We often get inquired about how a person gains legal rights to a child that isn’t theirs biologically. The answers aren’t simple, nor are they straightforward. In this blog we will do our best to provide you with a simple overview of a complex area of the law. This will help you learn how to gain legal rights to a child that isn’t yours biologically.

In Arizona there are only really two ways to gain legal rights over a child that is not yours legally; Adoption and Guardianship. Each option has a very specific set of requirements and procedural steps that must be followed or the Court will not grant the requests. While many issues can be handled without an attorney, these are complex matters that are best handled with the assistance of someone experienced and knowledgeable about the processes. Here at RPB Law we pride ourselves on our ability to accurately and honestly assess each case and their likely outcomes. NO ATTORNEY CAN GUARANTEE AN OUTCOME, and if you meet with someone who says they can, you should be very weary and see that as a red flag.

To be clear there are some additional methods within the Juvenile and Family Law arenas for achieving legal rights to a non-biological child, such as In Loco Parentis and/or Grandparents Rights, but those are very specific situations that will be covered in a future blog…

ADOPTION

Adoptions permanently turn over the rights and responsibilities of caring for a child over to someone or a married couple who are not the biological parents. Adoptions are not revocable. They are permanent. Anyone who wants to explore an adoption needs to know that any and all parental rights must be severed before an adoption can take place.

One of the most common adoption situations we see here is when the biological mother/father has remarried and they want to have the step-father/mother the legal father/mother of the child. In this situation if the biological father/mother is in the picture at all, even if they aren’t the greatest, the adoption is unlikely to be successful unless the biological father/mother agrees to it. It should be additionally noted that even if the biological parent wants the adoption to happen, which includes their parental rights being terminated, the consent to adopt documents have very specific requirements, and have to be more than just a notarized statement.

Another Potential Adoption Situation

Another common situation we see regarding potential adoptions is when grandparents or extended family members who have taken guardianship of a minor may feel like a guardianship is not permanent enough and may want to take over the parenting role completely. Again, the parents’ rights need to be terminated before any potential adoption can take place.

We have recently experienced an influx in consultation s regarding same sex couples wanting to adopt following the Supreme Court s’ recent recognition of same sex marriages. THis is an area of particular difficulty, primarily because adoption laws in Arizona have not quite caught up with the Supreme Court Decision validating same-sex marriages. This has resulted in some confusion in the Courts about who can adopt. As the statutes currently read, “Any adult resident of this state, whether married, unmarried, or legally separated, is eligible to qualify to adopt children. Husbands and wives may jointly adopt children.” The same statute later goes on to say, “If all relevant factors are equal and the choice a married man and woman certified to adopt and a single adult certified to adopt, placement preference shall be with a married man and woman.” Clearly Arizona law remains incredibly discriminatory against same-sex couples when it comes to adoption.

Finalizing an adoption can be a difficult and complicated process that requires a lot of paperwork being assembled and anything missing can draw out the process unnecessarily. Hiring an attorney to handle it can be a huge help and will streamline and simplify things.

GUARDIANSHIP

Guardianship is when a third party is allowed by the Court to be responsible for a child, i.e. obtain medical care, make education decisions, provide a home, food, care, and support for the child. There are two types of Guardianship under Arizona law. The first, Under title 14, which governs probate, wills, trusts, etc. and the second under title 8, which covers Juvenile law and Department of Child Safety cases. Functionally these two types are very similar. The differences are more about how the Guardianship gets put into place and how it ends, if it ends.

Title 8 Guardianship

Guardianships can be a great alternative to a dependency (DCS case) or termination of parental rights. The parents’ rights remain intact, but basically are handed over to a third party until the parent can step back in. All the while the child is in a safe and stable home with someone willing and able to care for him/her. These guardianships are handled under title 8 because they arise out of a Juvenile Court case (dependency/DCS case) and are not necessarily voluntary, which means they don’t require the parents’ consent.

Ending a title 8 guardianship is not up to the parents, rather it is up to the Court that granted it. The involuntary nature of the Title 8 Guardianship means that a parent would have to go before a Juvenile Court Judge and prove that he/she is capable of being a fit and proper parent and that he/she had remedied the issues that caused DCS involvement.

Title 14 Guardianship

The more common type of Guardianship is a Title 14 guardianship, these are voluntary and most often are accomplished with parental consent. A common situation for these is when military parent(s) are deployed and need a 3rd party to exercise parental rights of a child while they are deployed. These guardianships are generally temporary in nature and serve to ensure a child has proper legal supervision during a parents absence or inability to provide appropriately for the child.

The voluntary nature of a title 14 guardianship means that it can be revoked at any time by the parent. The Title 14 Guardianship is perfect for military families where the only parent, or both parents are being deployed and grandparents or aunts/uncles need to step in to take care of the kids until the parent(s) return. This could also be useful in situations where the parents are deported or imprisoned.

Setting either of these types of guardianship in motion is difficult, and the efforts involved are very complex. Walking someone through the procedures and requirements in depth is too boring to discuss here, which is why consulting an attorney who knows how to handle these cases is vital.

Contact us to help you understand how to gain legal rights to a child that isn’t yours biologically

If you or someone you know is facing a situation where guardianship is an appropriate option, contact us ASAP for a FREE CONSULTATION (520) 327-1409 or via matt@rpbtucson.com.

Grandparents’ and Third Party Rights in Arizona

Grandparents’ and Third Party Rights in Arizona

Circumstances often arise requiring someone other than a legal parent to care for a minor child or children. Grandparents are often required by circumstances to care for their grandchildren. Aunts and uncles often care for their nieces and nephews, and sometimes family friends are required to step in to care for friends’ children or children’s friends. Without the proper court orders, a third party caring for a minor child lacks the authority to consent to medical care, enroll the child/children in school, or apply for benefits on their behalf.

Grandparents Rights in Arizona

In Arizona, there are a number of different mechanisms for grandparents, relatives, or other third parties to gain placement and legal decision-making authority (formerly called custody) over a minor child. Depending on which route you choose, you may have to file in a different court, and different legal standards apply. In this post, I will discuss the simplest methods for obtaining third-party custodial rights: Signing a Power of Attorney, and Title 14 Guardianship. In a later post, I will outline Arizona’s In Loco Parentis statute, and discuss filing a Juvenile Dependency case.

Power of Attorney – The simplest way for a parent to grant a third party the ability to consent to medical care and enroll a child in school is by executing a valid power of attorney. The Power of attorney form must comply with A.R.S. §14-5104, must explicitly lay out the custodial rights being conveyed, which cannot include the right to consent to marriage or adoption, and most importantly expires after six months.A parent’s signature on a power of attorney must be notarized to be valid, and a power of attorney is revocable at any time through another notarized statement.

A valid power of attorney is a helpful temporary means of conveying custodial rights in the short term, but does not do much good if a third-party is attempting to protect a child from abuse or neglect, or if a parent is not on board with third party custody.

Title 14 Guardianship

Unlike a power of attorney, a Title 14 Guardianship does not expire. However, there are several important factors for a third party like grandparents to consider before filing for a Title 14 Guardianship to obtain rights.

  1. A Title 14 Guardianship requires the consent of the parents, or if the parents are not available to consent that the parents be served with the Petition and not object.
  2. Prior to a Title 14 Guardianship being ordered, the proposed guardian is required to complete several fiduciary trainings online
  3. After a Title 14 Guardianship has been entered, a parent can revoke the guardianship at any time by filing the proper documents with the Probate Court. After a parent has filed to revoke consent for the guardianship, the Probate Court will set the matter for a hearing, and the guardianship will be dismissed. Even if the guardianship is in the best interest of the minor child/children, the Probate Court has no power to keep a guardianship open once a parent has withdrawn consent.
  4. Title 14 guardians must file an annual guardianship report with the Probate Court, updating the court on the status of the minor child/children who is/are subject of the guardianship.  

The best options for Grandparents to get rights

Title 14 Guardianship is a good option in situations where the parents consent, or where there are no legal parents able to care for a child. Probate self-service forms are available at https://www.sc.pima.gov/

If you have any further questions, or need help with the process, please call our office at (520) 327-1409 to schedule a consultation.

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