Child Cases

Question 1

410(A) and SLDM when can a court make orders?

Answer 1

25-410(A) – “Judicial Supervision” – only when the child’s physical health would be endangered or the child’s emotional development would be significantly impaired.

Question 2

Can a TC be asked to make a decision when parties with JLDM cannot agree?

Answer 2

Yes. The court is not limited to merely vesting one parent with SLDM authority on the disputed issue. 25-403.02 authorizes the TC to intervene when parents who have JLDM cannot agree on childrearing decisions to be included in a parenting plan, including “other factors that are necessary to promote and protect the emotional and physical health of the child.”

See also Jordan v. Rea (2009). When parties have JLDM, a TC can resolve any conflict related to LDM per 25-302.02(D).

Question 3

Can a Court appoint an expert such as a TI when there is no pending litigation (post decree)?

Answer 3

No. 25-405(B) – “The Court may seek the advice of professional personnel, whether or not employed by the court on a regular basis. The advice given shall be in writing” – Per Paul E. this section does NOT permit a court to appoint an expert unless issues of LDM or PT are pending because that expert’s appointment is to assist the court in making those decisions, and nothing more. In other words, post-decree request to appoint TI is impermissible.

Question 4

What is the difference between 403.03(A) and 403.03(D)?

Answer 4

If Significant DV or significant history of DV, then the court “shall not award” perpetrator SLDM or JLDM. 403.03(A)

If any act of DV (even insignificant) TC MUST apply 403.03(D) presumption and rebut it before awarding SLDM or JLDM to perpetrator.

Question 5

What are 403 factors?

Answer 5

1. Parent-Child relationship
2. Relationship with other important family members
3. Child’s adjustment
4. Child’s wishes
5. Mental and Physical health of all parties
6. Which parent encourages contact more
7. Did a parent mislead the court
8. Has there been DV pursuant to 403.03?
9. Any coercion or duress?
10. Taken PIP class?
11. Convicted of false reporting or child abuse/neglect?

Question 6

What are 403.03 factors?

Answer 6

a. NO JLDM to a parent if “significant DV” or “Significant history of DV”
b. Court shall consider evidence of DV is contrary to best interests and safety and well being of both child and intended victim
c. DV occurs when
i. Findings from another court of competent jurisdiction
ii. Police reports
iii. Medical reports
iv. DCS records
v. DV shelter records
vi. School records
vii. Witness testimony
d. If parent committed DV, there is a rebuttable presumption that parent should not have SLDM or JLDM as it is contrary to child’s best interests. The presumption does not apply if both parents committed acts of DV. Acts of DV include
i. Physical or sexual assault
ii. Places a person in fear of serious physical injury
iii. Engages in a pattern of behavior which warrants an ex parte OOP
e. In determining whether presumption was rebutted, the court shall consider:
i. Whether the parent demonstrates sole or joint LDM or equal PT is in the child’s best interests
ii. Whether the parent completed a batterer’s intervention program
iii. Whether the parent completed alcohol or drug abuse counseling if appropriate.
iv. Completion of parenting class
v. Whether parent on probation, parole or has OOP against him/her
vi. Whether parent has committed any further acts of DV
f. If TC finds a parent committed DV, then that parent has burden to prove PT will not endanger child
i. Court can order exchange at safe location
ii. Order supervised PT
iii. Order classes
iv. Prohibit alcohol and other substances during PT
v. Pay for supervised PT
vi. Prohibit overnight PT
vii. Require a bond for safe return of child
viii. Order the other parent’s address confidential
ix. Impose other necessary restrictions
g. No joint counseling can be ordered if DV

Question 7

If a court determines that any act of DV occurred, what must the court do?

Answer 7

DeLuna v. Petitto – Once a court determines that a parent engaged in DV, the court must make additional statutory findings on the record in accord with 403.03
Facts – parties married in 2016, separated in 2017. In 2013, Father arrested after assaulting Mom and mom’s child from different person. At separation in 2017, Mother obtained an OOP due to stalking and harassing behaviors. Father violated the OOP. At dissolution trial, court ruled that Father had committed DV, but it was not “significant DV under 403.03(A)” and awarded JLDM and unsupervised PT. Mom appealed.

Question 8

What is the three part test mentioned in DeLuna V. Petitto that is not mentioned in any statute, but courts regularly use to determine whether DV is “significant”?

Answer 8

There is a three-part test, not in any statute, which defines “significant” DV. This is the test a lot of judges use and include in their decree:

1. The seriousness of the particular incident of DV
2. The frequency or pervasiveness of the DV
3. The passage of time and its impact

Question 9

Can a FC judge modify an OOP where there was already a hearing in OOP court?

Answer 9

No. Vera v. Rogers - FC is now prohibited from amending OOP because there was already a hearing and another judge already upheld it with the kids on. Father has to wait a full year (or convince Mom to dismiss). Father did not appeal the OOP, that was his only other remedy (Mom’s dismissal or Father’s appeal of ruling). “Father is bound by the strategy he chose.”

Question 10

What did Nicaise v. Sundaram hold (hint final say)

Answer 10

Nicaise v. Sundaram – Giving “final say” does NOT convert that parent’s rights to SLDM.

Facts: TC awarded Father with “final say”. COA ruled that is effectively SLDM – the COA did this without either party asking the court to do so and without being briefed on the subject. . .

Holding: The tie-breaking parent is not granted SLDM. “Final Say” is still “shared” LDM with the possibility that one parent will exercise a superior right if the parents cannot reach a joint agreement, whereas SLDM creates “unshared” authority.

Question 11

In Paul E. - Did TC exceed its statutory authority by appointing specific treatment professionals for the child here and otherwise limit the parent’s sole legal decision making authority.

Answer 11

Holding: YES, the TC did exceed its authority. Once appointed with SLDM, Father alone possessed the legal right and responsibility to make major decisions for MC in non-emergency decisions. The court may only limit the decision-maker’s authority only as necessary to prevent endangering the child’s physical health or significantly impairing the child’s emotional development. Per 25-410(A).

Rationale – promote family privacy, prevent intrusion upon the prerogatives of the sole decision maker, and in furtherance of the fundamental right to parent a child. (See comment to Section 408 of Uniform Marriage and Divorce Act).

Whether a restriction or directive, the “limitation” imposed by the TC must be necessary to prevent the child’s physical endangerment or significant emotional impairment, and tailored only to prevent or remedy the endangerment or impairment. TC must be mindful not to unnecessarily intrude on the SLDM unshared authority to make major decisions. For example in Paul E, there should be evidence demonstrating that Father would choose an unqualified or ineffective therapist before a court could appoint a specific person.

Question 12

Can a court appoint an expert utilizing a procedural rule and if so, what is the limitation? (hint - post-decree experts)

Answer 12

ARFLP Rule 95(B) – “except as provided in Rule 72 or 74, the court may order parties to engage in behavioral or mental health services, including counseling and therapeutic interventions.” This rule is procedural, and does not expand TC authority. So this section too does not permit a TC to appoint an expert post decree when no issues related to LDM or PT are currently pending before the court.

Question 13

Does a FC judge have “concurrent authority” over FC action and OOP if in SC? What is the procedural rule for that?

Answer 13

OOPs and Family Court (from Vera v Rogers) – FC has jurisdiction over OOPs in SC and there is “concurrent authority” over both actions by permitting FC to consider TOs and Oops together in a joint hearing. ARFLP Rule 5(A). Pursuant to this rule, FC has the authority to “harmonize” TO orders and OOP orders. FC can amend, remove children. FC can even dismiss OOP.

Question 14

What does it mean if a party has SLDM?

Answer 14

25-401- Sole LDM means one parent has 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.

Question 15

Can a grandparent get visitation even if one parent refuses to grant it?

Answer 15

Yes, TC is authorized to make childrearing decisions in limited, statutorily prescribed circumstances, such as granting third party visitation over a parent’s objection – Holding that when two legal parents disagree about whether visitation is in their child’s best interests, both parents’ opinions are entitled to special weight, but parent’s conflicting opinions must give way to the court’s finding on whether visitation is in the child’s best interests. Firedman v. Roles

Question 16

When two parents disagree about a LDM topic, can the court only award SLDM to one party?

Answer 16

Nope. TC is not limited to merely vesting one parent with SLDM authority on the disputed issue. 25-403.02 authorizes the TC to intervene when parents who have JLDM cannot agree on childrearing decisions to be included in a parenting plan. When there is an impasse, TC is authorized to determine not only the PP element in dispute, but also “other factors that are necessary to promote and protect the emotional and physical health of the child.” See also Jordan v. Rea (2009). When parties have JLDM, a TC can resolve any conflict related to LDM per 25-302.02(D).

Question 17

Is custodial interference a form of DV? What about cruelty to animals?

Answer 17

You bet. Custodial interference occurs when a parent denies the other parent access to the child before entry of a court order, without a legal basis to do so.

Yes to cruelty to animals too. See Moreno v. Beltran.

Question 18

What is the ruling and rationale in Hays v. Gama?

Answer 18

The court cannot exclude evidence to be considered in the child’s best interests as a sanction for contempt. In this case, Mother refused to take the child to a male psychologist and took her to a female (to be noted Wendy Dutton recommended the child see a female and even recommended the female Mother ultimately took her to.) Mother disobeyed the court after she was denied her motion requesting the female therapist. The court stated nothing from the female therapist could be taken into consideration and Dr. Moran could not speak to the female therapist. Dr. Moran even questioned the judge’s decision, saying it was highly unusual. The Supreme Court (En Banc) revered and remanded, stating the court could not ever exclude outright the evidence, and that a sanction had to be limited to the least possible power adequate to the end proposed. The court even said jail time for Father could have been permissible.

Question 19

What is the process to modify LDM or PT orders?

Answer 19

Determining whether to modify LDM or PT is a TWO step process:

1. The Court must ascertain whether there has been a change of circumstances materially affecting the welfare of the child.
2. If Yes, then the court must determine whether a change in custody will be in the best interests of the child

(From Backstrand v. Backstrand [2020]).

Question 20

Must you present evidence of day care costs to get credit on CSW?

Answer 20

Yes. silly question.

Question 21

What is the Relocation Statute, in a nutshell?

Answer 21

25-408 factors

a. If by written agreement or court order both parents have JLDM or PT and both parents reside in the state, at least 45 days advance written notice shall be provided to the other P b-4 a parent may do either:
1. Relocation outside state or
2. Relocate more than 100 miles within state
b. Said notice shall be made via certified mail or other lawful service.
c. Within 30 days of receipt of notice, nonmoving party may petition the court to prevent relocation. If late objection, must have good cause for tardiness, and parent seeking to relocate can petition court in advance to determine appropriateness
d. Subsection A does not apply if (within a year) the parties agreed to a relocation in writing or court order issued
e. If relocation done, still have to comply with existing orders
f. Pending court ruling
1. A parent with SLDM or JLDM + Primary Parent status can still move if required by circumstances of health, safety, employment or eviction of that parent or that parent’s spouse can relocate in less than 45 days (temporary relocation only)
2. A parent with JLDM and Equal PT who is required by circumstance of health, safety, employment or eviction of that parent (or spouse) may temporary relocate only if mutually agreed upon in writing
g. Determining Relocation is done in the child’s best interests and burden is on the parent wanting to move

Question 22

What is the standard in Relocation cases and who has the burden of proof?

Answer 22

In the child’s best interests and the parent wanting to move has the burden of proof.

Question 23

408 Factors in a relocation case are:

Answer 23

1. Factors in 403
2. Whether relocation is made or opposed for a good faith reason, and not to interfere with or frustrate relationship or access
3. Prospective advantage of the move for improving general quality of life for parent and child who contemplate the move.
4. Likelihood moving parent will comply with PT orders
5. Will relocation allow realistic PT for both
6. The effect on child’s emotional, physical or developmental needs
7. Motive of the parents and validity of reasons given to move or oppose the move, including any increase in child support
8. Potential effect of relocation on child’s stability

Question 24

How does one establish Paternity pursuant to 25-812 (Voluntary Acknowledgment)?

Answer 24

File with the clerk, DCS or DHS one of the two:

1. notarized statements by both parents complete with SS numbers acknowledging paternity BUT, if another man is presumed to be Dad in accord with 814, then valid only with written Father’s consent
2. An agreement by parties to be bound by genetic test results at an agreed upon lab.

Question 25

What are the presumptions of paternity per 814?

Answer 25

a. Man presumed Father if
1. Married to mother at least 10 months prior to birth or, born within 10 months after marriage is terminated due to death, divorce, annulment, separation
2. Genetic testing affirms at least 95% probability of paternity
3. BC signed by Father (out of wedlock)
4. Signed acknowledgement of paternity signed by both parents.
b. If another man presumed due to 814(A)(1), an acknowledgement of paternity may be effected only with written consent of the presumed father or after presumption rebutted. If presumed father dies, paternity may be established without written consent.

Question 26

Under 814, what happens if two presumptions apply?

Answer 26

If two presumptions exist, Court to determine - on the facts - which one has weightier considerations, to include policy and logic BUT a court decree establishing paternity of another man rebuts the presumption.

Question 27

What is the effect of the filing of the acknowledgement with the superior court.

Answer 27

same force and effect as s judgment, and therefore is irrebuttable.

Question 28

Per 814, if there is a decree with paternity established, what does that do?

Answer 28

Its a judgment, and irrebuttable.

Question 29

Can a mother or father rescind acknowledgment of paternity?

Answer 29

Yes if within 60 days.

Question 30

For how long can a party file a Rule 85(c) motion challenging a voluntary acknowledgement of paternity?

Answer 30

Only six months after the 60 day rescind period expires.

Question 31

How do you challenge a voluntary acknowledgment after 60 day rescind period expires?

Answer 31

by Rule 85(c) motion - a mother, father or child or other party to the proceeding can challenge a voluntary acknowledgment of paternity established only on the basis of fraud, duress, or material mistake of fact, with the burden of proof on the challenger to the acknowledgment.

Question 32

What is a Rule 85(c) motion for?

Answer 32

Relief from judgment or Order. It can

1. correct mistakes on record at any time
2. relieve a party if mistake, new evidence, fraud, void, satisfied, any other reason
3. Timing mistake, new evidence or fraud within 6 months and void, satisfied or any other reason “within a reasonable time”

Question 33

When can you extend the Rule 85(c) motion deadline?

Answer 33

get leave of court for 30 more days if you did not receive notice of entry of order or the court finds no prejudice to do so.

Question 34

What is equitable estoppel?

Answer 34

(Doherty v. Leon) - it precludes a party from asserting a right inconsistent with a position previously taken to the detriment (prejudice) of another action in reliance thereon. It requires:

1. conduct that induces another to believe in certain material facts
2. acts resulting in justifiable reliance on the inducement and
3. injury caused by the resulting acts.

Question 35

What is the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) say about initial custody determination (jurisdiction)? 1031

Answer 35

a. Except per 1034, this state has jurisdiction for initial decision only if:
1. AZ is home state as of filing date or, was home state within 6 months prior to filing and one parent continues to reside
2. Another state court does not have jurisdiction under paragraph 1 or declined jurisdiction on grounds that AZ court more appropriate forum per 1037 or 1038
a. One parent and child or both parents and child have a “significant connection” with AZ (more than mere presence)
b. Substantial evidence is in AZ concerning child’s care, protection, training and personal relationships.
3. All courts having jurisdiction under paragraphs 1 or 2 have declined to exercise jurisdiction on grounds that AZ court more appropriate forum under 1037 and 1038
4. No other court would have jurisdiction under paragraphs 1-3
b. Subsection a. is exclusive jurisdiction basis
c. Physical presence of or personal jurisdiction over a party or child is not necessary

Question 36

What does the UCCJEA say about exclusive continuing jurisdiction (1032)?

Answer 36

a. Except per 1034, once a court has initial jurisdiction (1031) or subsequent jurisdiction (1033), it continues to have jurisdiction until either of the following are true
1. The child and at least one parent/caretaker no longer have significant connection and substantial evidence no longer exists
2. A court of any state determines the child and parents no longer reside in this state
b. If continuing jurisdiction lost, can only make modifications if reestablished under 1031

Question 37

What’s the courts jurisdiction to modify a prior court order under UCCJEA (1033)?

Answer 37

a. Except for temporary emergency jurisdiction (1034), AZ court shall not modify another state’s orders unless this state has jurisdiction per 1031, subsection A, paragraph 1 or 2 AND either are true:
1. The out of state court determines it no longer has exclusive, continuing jurisdiction under 1032 or AZ would be more convenient forum
2. Any state court determines the child and parents do not presently reside in the other state.

Question 38

What if there is an emergency, can an AZ court make emergency orders under UCCJEA?

Answer 38

Yes, the UCCJEA gives temporary emergency jurisdiction where:
1. the child is physically present and abandoned
2. or necessary to protect the child from mistreatment or abuse
If no other court has previously made orders, the temporary orders shall remain in effect until another court in any jurisdiction makes orders where it finds jurisdiction per UCCJEA. If that never happens, then the emergency order becomes final and AZ becomes the home state.

Question 39

What is the inconvenient forum provision in UCCJEA? (1037)

Answer 39

a. AZ Court with jurisdiction may decline to exercise it if it determines it is an inconvenient forum under the circumstances and another state’s court is a more appropriate forum. The issue may be raised on motion of party or court’s own motion or request of another court.
b. Before declining jurisdiction, AZ court shall first consider whether it is appropriate for another state’s court to exercise jurisdiction, and shall consider all relevant factors including:
1. Whether DV occurred and whether it will likely occur again;
2. Length of time child resided in that state
3. The distance between each court
4. Parties’ finances
5. Agreement of the parties re jurisdiction, if any
6. Nature and location of the evidence, including child’s testimony
7. Ability of each state to swiftly and appropriately handle matter
8. The familiarity of the court with the facts and litigation.
c. If AZ court determines its is an inconvenient forum, it shall stay but not dismiss the proceedings, so long as the other state commences proceedings immediately
d. The court can decline jurisdiction if child custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding.

Question 40

If another TC rules on an OOP can FC modify thereafter?

Answer 40

No. In Vera v. Rogers, Father challenged the OOP in OOP court after judge in FC did not address. The OOP had the children on it. TC upheld the OOP. Father then sought to modify the OOP. But FC can’t anymore. Too bad, so sad, you won’t see your kiddos for a whole year. Dianne Sullivan case. “Father bound by the strategy he chose.”
Judges cannot engage in a “horizontal appellate review” of another judge.

Question 41

Is there a presumption for equal parenting time in AZ.

Answer 41

No. The phrase “maximize their respective parenting time” does not mean 50/50, although 50/50 is likely the starting point under this concept for most courts. But 403-02 states “consistent with [other relevant statutes] and the child’s best interests too. These are not superfluous provisions.

Question 42

What clouded the issue regarding there being a presumption of equal parenting time?

Answer 42

In Woyton v. Ward, the court stated that the general rule of thumb is that equal or near-equal parenting time is presumed to be in a child’s best interests. But this was DICTA.

Question 43

Let’s know Woyton v. Ward! (think Lance Winter case and mom already in Nevada)

Answer 43

Facts: parents in military. Mother moves to Boston with child. Father files and gets emergency orders to get child back. At trial, TC orders JLDM and orders Mother primary residential parent. Having already moved to Boston, she was already living out of state by the time the TC made detailed findings. The Court did not do 408 findings. The COA reversed and remanded. Said that it was still a relocation case and that the court was required to do 408 findings.

Holding: Court is required to apply the 408 factors as this is a relocation even though Mom already moved. Compare to older cases. In prior cases where one parent already lived out of state, the court has not applied the factors (see Buencamino, 2009).

Question 44

If there are already orders in place with Mom living in Cali and having “final say” for education, and Dad living in AZ, can the court simply decide a school choice issue without 408 factors?

Answer 44

No. Always a relocation matter where a child was previously being exchanged every two weeks but now there is a change in circumstances. . . .

Question 45

If Father lives in MN and Mother lives in Havasu City and wants to move to Vegas, can Father object validly to the relocation?

Answer 45

Yes. Mom even moved to Vegas after Dad objected. Mom reasoned this was no change in circumstances for Dad - still same PP could be followed, still roughly same distance and travel considerations. But a mere move of the child to Vegas was sufficient to find material change in circumstances and a full blown 408 analysis is not permissible. Court did full 408 analysis and ordered Father to be school year parent in MN and Mother to have summers. Court also stated had she petitioned the court for a decision prior to move, she could have learned of decision prior to moving and basically losing the child. PLUS, the fact that Father’s family was in MN and was there even the last time the court did 408 analysis (or last orders made) does not preclude Father from presenting that evidence (again). Backstrand v. Backstrand. In this case, even the CFE said child should go to Vegas with mom. Bad outcome for mom.

Question 46

What is the Ecclesiastical-abstention doctrine and how does it apply to parenting plans re religious provisions?

Answer 46

TC cannot make findings and determinations whether a given faith is “Christian” or not. Diving into an ecclesiastical matter is prohibited by the Free Exercise and Establishment Clause of the First Amendment. A secular court must avoid ruling on such issues to prevent the appearance that government favors one religion over another

Question 47

What are the facts of the Ecclesiastical-abstention case Ball v Ball?

Answer 47

Facts: Parenting plan was a court form. The parties checked the box that they could take the child to their own church or place of worship on their own time and also the child would be raised in the “Christian” faith (handwritten in blank. Father started to attend LDS church. Mom filed petition to enforce, claiming it wasn’t a “Christian” religion and had an expert from her church testify. Court agreed and found Father in contempt. Father appealed.
Holding – reversed and remanded – First, TC errored in finding the handwritten “Christian” narrowed the scope of the first box checked, where it stated the parties could go to any place of worship. Next, the Court held that the Ecclesiastical-abstention doctrine applies – TC cannot make findings and determinations whether a given faith is “Christian” or not. Diving into an ecclesiastical matter is prohibited by the Free Exercise and Establishment Clause of the First Amendment. A secular court must avoid ruling on such issues to prevent the appearance that government favors one religion over another

Question 48

Is there a hierarchy of presumptions for paternity?

Answer 48

Doherty v. Leon (2020)
Facts – Bio Father agreed to donate sperm to same-sex couple. She got pregnant and the same-sex couple married before birth. They broke up. Bio Father thereafter decided to attempt to establish paternity (having previously (orally) agreed to give up his parentage rights). Thus there were two (2) paternity presumptions: marital and genetic presumption [(25-814(A)(1) & (2)].
Rule -There is no hierarchy of presumptions. Per 25-814 (c), if there are two or more presumptions that apply, the court determines the issue based on weightier considerations of policy and logic.

Question 49

Once TC weighs the considerations, policy and logic when choosing between two paternity presumptions, does it sever a bio father’s parental rights?

Answer 49

Nope, Bio dad never had established rights so he had no rights to sever.

Question 50

In a same sex marriage, will the marriage presumption (paternity) apply?

Answer 50

Yes. McLaughlin v. Jones. the legislative intent is to financially support a child with two parents. Also violates the 14th Amendment.

Question 51

Can TC amend a birth certificate to say “Parent” and “Parent” or “Mother” and “Mother”

Answer 51

Yes. McLaughlin continued (McLaughlin and Swanson) - TC can order Dept of Vital Statistics to amend BC to reflect two same sex or two parents.

Question 52

What if Mother and Putative Dad sign a voluntary acknowledgment knowing Dad is not bio dad. 60 days pass and it is also filed with the clerk of the court. Then, later on, Mom files Petition to Establish for bio dad. Bio dad files MSJ, saying paternity already established and as a matter of law, he cannot be legal parent. Mom files Rule 85(c) motion arguing that she and putative dad committed a fraud and should be relieved by the court. would the court grant Mom’s rule 85?

Answer 52

No, Mom knew of the fraud too (they both did). A voluntary acknowledgement filed with the state has the same force and effect as a decree/judgment and thereafter preempts all other presumptions forevermore.

Question 53

What if a voluntary acknowledgment is never filed or provided to the the state (DCS DHS, courts, etc)? Still a judgment? Still a presumption?

Answer 53

Not a judgment, but yes it is a regular presumption.

Question 54

How do you rebut a presumption in a paternity action?

Answer 54

by clear and convincing evidence. DNA results 95% or greater that man is not bio father is clear and convincing evidence.

Question 55

In temporary orders hearing, does the court have to consider 408? Does the court have to make findings? Does the court have to consider 403? Does the court have to make findings?

Answer 55

Yes and No to each. Layne v. LaBianca and Guiterrez v. Fox.

Question 56

Can a court decide credibility based upon written affidavits and submission to court without oral testimony? By avowal from lawyers?

Answer 56

No and No. Solorzano v. Jenson (child support and Judge Rea) and Volk v. Brame (requiring lawyers to proceed by avowal) in both cases, a child’s best interests is at stake, may be different outcome in property setting???

Question 57

If there are crypopreserved embryos and the parties divorce, can Mom have them (she cannot produce due to chemo treatment) if Dad objects?

Answer 57

If the contract the parties signed says no, then it is no. In that case, the parties agreed the embryos would go to a third party. The court had no discretion - contract controls and contract interpretation principals apply.

Question 58

25-809 and 25-320 child support - Can a court apply child support retroactively and what are the rules?

Answer 58

Yes.
1. Retroactive back to date of filing is Mandatory.
2. Retroactive 3 years prior to filing is discretionary and not contingent on Father presenting “equitable defenses”, court need only state facts to support its exercise of discretion.
3. Can even go back more than 3 years (all the way back to birth) but court has to make explicit findings of fact.
Gelin v. Murray

Question 59

Can a TC exclude Father’s evidence if he could have provided to CFE expert but he refused to participate in CFE?

Answer 59

Nope. Hays v. Gama applies here. “A parent’s myopic and combative litigation tactics cannot deprive a child of a well-informed custody decision anchored in the child’s best interests.” Besides there are other remedies that a TC can employ.

Question 60

When an AZ court is determining whether AZ is an inconvenient forum, what must it do?

Answer 60

It must address ALL 1037 factors, even those not relevant PLUS any other relevant issue. It must also hold an evidentiary hearing and allow the parties an opportunity to be heard, not just a phone call with the judge in the other state. (Hubert v. Carmony) (AZ court dismissed Father’s AZ action after speaking to judge and finding TX judge was taking jurisdiction - that isn’t enough)

Question 61

What if another state or another country declines jurisdiction, does the AZ judge have to make 1037 findings as to that jurisdiction?

Answer 61

No. A foreign country not bound by UCCJEA can decline and AZ has to handle. Other provisions of the UCCJEA mandate this too (10319A)(3))
If a state, TC cannot sit in judgment over another state’s determination. The proper remedy is for the litigant to appeal or otherwise challenge that out of state court’s decision

Question 62

Can a TC order PT contingent on a future event or happening, such as Mother continuing with her therapy?

Answer 62

No. Contingency parenting orders are impermissible. A court can order therapy (Rule 95) but it cannot base PT on Mother attending therapy under 24-405(B) - that only applies if the court is seeking a behavioral professional’s assistance when pending before it are issues of LDM or PT. Having entered final orders, there are no issues pending.

Question 63

What if putative dad signs and files a voluntary acknowledgment but two years later, bio dad files Pet to Establish? What happens?

Answer 63

Putative Dad remains legal parent. filing with court makes it a judgment. Moreover, a Rule 85(c) cannot be had as it is greater than 6 months after the 60 day period of time to rescind the acknowledgment. There is a policy to have permanency and stability.

Question 64

Domicile - 90 days prior to filing one of the parties has to reside here. What if they don’t?

Answer 64

The court must dismiss. You cannot have two concurrent domiciles. In Natarajan, Father and Mother (from India) lived here pre-COVID and worked here with child. Mother and child lived in India for a long time, Father lived in UK to work but they had a leased apartment here in AZ. Father said he was going to come back to AZ and filed here. He also filed in UK and UK said India proper. For whatever reason, Father didn’t want to file in India. But Court here in AZ said too bad so sad, no domicile.

Question 65

NEW CASE SMITH v. SMITH what does it state!

Answer 65

There is no presumption of equal parenting time. DUH! Woyton v. Ward just gave us a “shorthand explanation of a more comprehensive constitutional and statutory analysis.” The standard is “in the best interests of the minor child” The legislature could have codified a presumption, but it did not.

Question 66

Can a court take into consideration gender assumptions (i.e. Mom was primary caregiver?)

Answer 66

Not any more. Used to be a factor but it was replaced with “the past, present and potential future relationship with parent” factor in 403. Now, absent fitness issues, the court must maximize each party’s PT and there is recognition that both the prior wage earner and the prior caregiver will both need to adapt.

Question 67

Is a TI cloaked with judicial immunity?

Answer 67

Yes. Lanzilotta case. A nonjudicial officer performing a court ordered function by aiding the court in making a final custody order has judicial immunity, protecting her from civil liability.

Question 68

What is judicial immunity?

Answer 68

protects judges from civil liability for judicial acts performed in the exercise of their judicial functions.

Question 69

What is in loco parentis?

Answer 69

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 sustained period of time

Question 70

Where does family court get its jurisdiction to hear matters?

Answer 70

25-402 confers jurisdiction to determine LDM, PT if a parent requests such a determination in any proceeding for marital dissolution, LS, annulment, paternity or modification of earlier decree of judgment. A parent or a third party can seek, but no one else.

Question 71

what additional factors shall a court determine in addition to 403 when making LDM orders?

Answer 71

403.01, including:
agreement or lack of agreement
whether lack of agreement is unreasonable
past, present and future abilities of the parents to cooperate in LDM about the child
whether JLDM is logistically possible

SLDM cannot unilaterally alter a court ordered PP
parent without LDM is still entitled to “substantial, frequent, meaningful and continuing contact with MC

Question 72

What must a parenting plan have in it according to 403.02?

Answer 72

LDM
plan that “maximizes PT”
no preference to gender
each parents rights and responsibilities for personal care of child
practical schedule of PT, holidays and vacations
procedure for child exchanges
relocation language from 408
procedure to resolve disputes
periodic review
procedure for communicating
statement regarding notification of child molesters
if parents are unable to agree, the court “shall” determine the element
that JLDM does not necessarily mean equal PT

Question 73

What does 403.04 say about substance abuse?

Answer 73

rebuttable presumption that sole or joint is not in child’s best interests IF conviction within past 12 months or if court determines that parent has abused drugs or alcohol. The court shall make findings:
findings to support its determination that parent abused drugs or alcohol or was convicted
findings that the LDM and PT arrangements adequately protects child
To rebut the presumption, the court looks at:
absence of any conviction or any other drug offence in past 5 years
results of random drug testing for a six month period
result of alcohol or drug screening provided by an approved facility

Question 74

Third party rights 409

Answer 74

A. - the court shall summarily deny a petition for legal decision making authority from a third party unless:
1. in loco parentis status AND
2. it would be significantly detrimental to the mc to remain or be placed in the care of either parent AND
3. another court has not entered or approved orders concerning LDM or PT within 1 year and there is reason to believe child is in danger AND
4. one of the following:
a. one legal parent is dead
b. parents are unmarried at time of the petition
c. dissolution of marriage or LS is pending
B. rebuttable presumption that awarding LDM to legal parent is in the child’s best interests because of physical, psychological and emotional needs of the child to be reared by a parent
C. another third party can petition the court for visitation if:
1. one legal parent is dead
2. child born out of wedlock and the legal parents are not married
3. In grandparent or great grandparent scenario, marriage was dissolved already
for in loco visitation , marriage dissolution or LS is pending
D. Petition under A or C must be verified or supported by an affidavit and include detailed facts, and notice shall be given
E. Special weight shall be given to legal parent’s opinions of what serves the child’s best interests, taking into consideration the relationship of the child and the person seeking rights or visitation, motivation of requesting party, motivation of person objecting, quantity of time sought, if on or both of the child’s parents deceased, the benefit in maintaining an extended family relationship,
F. If possible, court shall order visitation for grandparent or great grandparent if child is residing with that person’s child or grandchild
H. All visitation rights granted under this section automatically terminate if the child is adopted or placed for adoption. This does not apply if the child is adopted by the spouse of a natural parent after the natural parent remarries.

Question 75

25-411

Answer 75

A person shall not make a motion to modify earlier than one year or six months if one parent is failing to comply with the orders re JLDM. Emergencies pertaining to the child’s present environment may seriously endanger the child’s physical, mental, moral or emotional health.

Question 76

25-411 and military provision

Answer 76

provisions are in here in cases of deployment, deferral of entering final orders until the deployed parent returns, cannot use the absence against the parent, and delegation of parenting time to the grandparents or other relative or close person to child and family, including stepparent.

Question 77

What happens to TOs if underlying petition for dissolution or LS is dismissed?

Answer 77

they vacate unless a parent moves to continue the temporary orders by continuing the underlying petition as a petition for LDM and PT and the court finds, after hearing, that the circumstances warrant it. 25-404(B)