Recent Blog Posts in 2010

A contract is an agreement between two or more parties which contains promises that are legally enforceable. Contracts are at the heart of most business transactions, and it is important to understand this area of the law.

In Arizona, verbal contracts are generally enforceable unless the contract falls within the statute of frauds (ARS § 44-101). These kinds of contracts include, but are not limited to, the following: an agreement for a guaranty; an agreement for the sale of goods of $500 or more; an agreement that is not to be performed within one year; and an agreement for the sale of real property.

Even when a verbal contract would legally suffice, it is often preferable to commit the contract to writing. Doing so increases the likelihood that the parties understand the agreement in the same way. It can also help avoid disputes when parties remember an oral agreement differently, even when they are both trying to live up to the contract. And oral contracts are, as you might expect, more difficult to prove in the event litigation becomes necessary.

Over many years, courts have developed elaborate rules for interpreting written contracts, with the primary objective being to determine the intent of the parties. As you set out to write a contract, be specific in describing the mutual obligations and expectations of the each party. Take time to think through the expected relationship and the different possible scenarios that may play out. Make sure you address all the important issues in a way that is legally enforceable. An ounce of prevention here can be worth a ton of cure.

Finally, no matter how well written your contract, in the end it may be worth no more than the integrity of the other party. Failure of the other party to honor its contractual obligations can create havoc, and even when you are 100% in the right and when you must go to court to protect your rights, litigation can be expensive and emotionally draining. Choose carefully your contractual partners. Maximize your chance of success by doing business only with people of integrity and good faith.

It seems to me that we have lost track of what it means to be civil in today's world. 

Political debates often degenerate into pointless name-calling and television programs are in competition to be the most "in your face." With all of the hostility that surrounds us, it is ever more difficult to avoid being hostile. This can be doubly true if you find yourself in the midst of a hotly contested divorce. 

With emotions running high, most people are tempted to give in to the "dark side" and lash out at the people around them. While this course of action may bring temporary relief, it only makes things worse in the long run. I'm a firm believer in the idea that what goes around comes around. 

If your spouse engages in baseless mudslinging, the best course of action is not to retaliate by slinging more mud. If left alone, the party slinging mud usually ends up the muddiest. Sometimes the most powerful and effective voice is the softest. Civility in a divorce can civilize the process, turning an enemy into a friend and an adversary into an ally. It may not be fun, but it often gets better results than open hostility.

The world seems to have forgotten the simple truth that you get more flies with honey than vinegar. Civility is not just an antiquated notion, it is the glue that helps bind civilization together in cooperation, and cooperation in a highly contested divorce is certainly sweeter than honey.   

Relocation of a custodial parent is affecting more and more Arizona families. This it becomes especially complicated when the relocation takes the parent and child out of the state or out of the country.

Interstate and International Moves

Whatever the reason is for a parent and their child to relocate - a new job, resuming one's education, remarrying or other circumstances - relocating a custodial child to another state or country without first obtaining court approval would commonly be a violation of their custody agreement.

The separation of parents and children often causes heartache for both. And when the parents don't get along, it can make matters even worse.

Here is a cautionary tale that should help keep well-intentioned parents from making a mistake that could have devastating and long-lasting effects they never imagined.

In the wake of a bitter separation and child custody dispute, a father decided that it would be better for his child if he simply stayed away and let things quiet down for a while. He knew from past experience that his former girlfriend and mother of his child was making life miserable for his daughter whenever he spent time around her or even contacted her.

He avoided all contact for a couple months. He got busy with rebuilding his life, making the best of a bad situation and hoping the future would be less confrontational. Time went by, and while he thought of his child often, he also thought she would be better off without the havoc and heartache his attentions would undoubtedly bring about.

A few months became six months before he realized it. The next thing he knew, he faced a severance action of his custody rights filed by the mother. He was distraught. But since he had voluntarily made no effort to maintain contact with his daughter, he had inadvertently imperiled his custodial rights. In the eyes of the law, he had "abandoned" her.

Arizona statute 8-531 (a) defines abandonment as "the failure of a parent to provide reasonable support and to maintain regular contact with the child, including providing normal supervision. Abandonment includes a judicial finding that a parent has made only minimal efforts to support and communicate with the child. Failure to maintain the normal parental relationship with a child without just cause for a period of six months constitutes prima facie evidence of abandonment."

If a parent has not contacted a child because they are engaged in military service, incarcerated or severely ill they may be able to claim just cause. Other than that, they will find themselves on shaky ground.

An Arizona court recently summed it up this way: "The message, put simply, is this: do something, because conduct speaks louder than words or subjective intent. When, as in the present case, circumstances prevented the unwed father from exercising traditional methods of bonding with the child, he must act presently to establish the relationship however possible, and must vigorously assert his legal rights to the extent necessary. Only then is a biological link transformed into a parental relationship deserving full constitutional protection."

So remember:do something! Call your child, pay child support, send a birthday or Christmas card, write them a letter. Whatever it is you choose to do, do something on a regular basis and keep a record of how you are trying to be a part of your child's life.

If you have a problem that cannot be resolved by talking to the other side, too many people believe the only solution is filing a lawsuit. Of course, going to court is better than settling cases the way it was done in Tombstone, Arizona in Wyatt Earp's day but today there are more reasonable options to consider, such as Mediation or Arbitration.

Mediation is a method in which the parties agree upon a neutral Mediator who will listen to both sides and suggest a resolution. Generally, Mediators are lawyers who have training in settling disputes and can explain why an agreed settlement is often the best available option. Mediators do not have authority to require a settlement, they can only counsel, advise and recommend what they believe to be a workable settlement.

Arbitration is also a process in which the parties agree upon a neutral person to serve as the Arbitrator of their dispute though Arbitrators do have authority to decide the case and to enter an order that is binding on all sides. Arbitrators are typically lawyers who have training and experience in Court trials, Mediation and Arbitration.

Arbitration is like a court trial, but held in the office of the Arbitrator. The parties give sworn testimony under oath and introduce documents or other exhibits at an Arbitration hearing. After the hearing is over, the Arbitrator will review all of the evidence received at the hearing and make a decision. This decision is as binding on the parties as if it had been ordered in Court by a Judge. The advantages of Arbitration over Court trials include:

1. The decision is much faster than a Court trial because Arbitrations are frequently held soon after the matter is filed, whereas, Court trials can take one or two years to get to a hearing. 

2. There is no appeal from an Arbitration Award while a Court decision can be appealed and take another year or two to be decided. If the case is overturned by the Court of Appeals, it can go back for another trial and even another appeal.

3. Although the Arbitrator has to be paid by the parties, the overall cost is generally less than Court because of the lengthier process.

4. Both parties get back to their businesses sooner as opposed to being frequently interrupted by court hearings over a long period of time.

The UCCJEA (Uniform Child Custody and Jurisdiction Enforcement Act) is a set of laws enacted by all 50 states that can determine where a child custody case will be heard. Not all custody cases involve UCCJEA issues, but whenever children are on the move, the UCCJEA can be a central issue.

Arizona has codified the UCCJEA in Arizona Revised Statutes §§25-1031 et seq. Where a child lived the last six (6) months of his/her life is frequently the most important factor.

A.R.S. §25-1031 states that a court in Arizona has jurisdiction to make an initial child custody determination if any of the following are true:

1. This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.

2. A court of another state does not have jurisdiction under paragraph 1 or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under section 25-1037 or 25-1038 and both of the following are true:

(a) The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence.

(b) Substantial evidence is available in this state concerning the child's care, protection, training and personal relationships.

A.R.S. §25-1033 states that another court can modify an order from another state if the child has resided in the new state for six (6) months and either of the following is true:

1. The court of the other state determines that it no longer has exclusive, continuing jurisdiction under section 25-1032 or that a court of this state would be a more convenient forum under section 25-1037.

2. A court of this state or a court of the other state determines that the child, the child's parents and any person acting as a parent do not presently reside in the other state.

There are many other issues that can arise when dealing with securing a proper forum for an initial child custody determination or a modification of custody under the UCCJEA. Establishing the proper location to address your initial child custody determination or modification can have a major impact upon the end result of your case.  

Contact a Phoenix Child Custody Lawyer at Gillespie, Shields & Durrant and we will assist you with navigating the UCCJEA and ensuring you have provided yourself with the best opportunity to obtain the result you are looking for.  

1. Where will you live?

It's an obvious question that many people fail to consider. It is very rare for couples to successfully live in the same home while a divorce is pending. Two households are more expensive than one, so you need to figure out how to pay the extra expenses ahead of time. One's standard of living usually drops somewhat during a divorce but it's always best to have a plan.   

2. What bills will each of you pay?

Divorcing couples often sever their financial ties soon after filing for divorce - separate bank accounts and separate bills. While you may be able to cancel some joint financial obligations, you will likely have mortgage payments, insurance, car payments, etc. that both of you are obligated to pay. Leaving it to for a judge will cost you additional time and expense so it's always best to find solutions on your own.  

3. If you own a home, will you keep it or sell it?

Traditionally, if one spouse is going to keep the house they must refinance it to get the other's name off the mortgage and pay half the equity to the other spouse. The other option is to simply sell the home and split the proceeds. One result of the housing crisis has been that many people are upside down on their homes, which changes things considerably. You must look at your individual circumstances to decide what is best.

4. How are you going to divide personal property?

Generally, divorcing couples are able to divide their personal belongings but occasionally emotional attachments interfere with rational decision-making. First, identify those items that are most important to you. Prioritizing is important because odds are that your spouse's high priority items aren't the same as yours. This allows you to offer lower-priority items in exchange for higher ones. It often works out better for both parties.

5. Do you have access to short-term funds?

Divorce is expensive. You double the number of households you support without increasing your income and will likely have attorney's fees as well. This is especially difficult if you are unemployed or your spouse was the primary source of your family's income. You need to have access to a source of available funds to get you through this transitional time. Eventually, you may be able to get child support and/or spousal maintenance, but you cannot count on that to provide all of your needs. Use your savings, seek help from family members if possible. If absolutely necessary, use credit cards for cash advances or remove funds from retirement accounts to get through this difficult time.

6. What is your plan for long-term income?

This week I had a fabulous experience speaking to a high school class and teaching them about the Constitution and the Supreme Court.  They were an exceptional group -- very bright, dedicated, and quite conscientious. I was impressed that they understood the basics about the Constitution, which is more than can be said for a lot of people, including many of those who represent us on Capitol Hill.  

For example, this group was quick both to point out that the rights to life, liberty and the pursuit of happiness are the basis of -- are you ready? -- the Declaration of Independence.  That phrase does not appear anywhere in the Constitution, even though I am personally aware of at least two members -- prominent members, even -- of the United States House of Representatives who have recently quoted the Declaration of Independence incorrectly, believing it to be the Constitution.

Now, my goal here isn't to rip on Capitol Hill.  The congressional approval polls over recent years covering both parties have already done that.  But I believe it is tragic that we have elected people who swear an oath to uphold the Constitution when, by all appearances, they haven't ever read it. 

My real point here is that I'm both relieved and encouraged by those in the next generation who have not only read the Constitution but appear to understand it far better than some of our elected officials.  They understand that government is about the people and that people are the source of the government's power, not vice versa.  They understand that Congress can't pass a law that tells us, the people, what we must or cannot do unless the Constitution gives Congress that specific power over that aspect of our lives.

The Constitution is the basis for all of our federal laws, and every state has its own constitution that largely mirrors the federal Constitution.  If we realistically expect our federal or state laws to be effective, or if we realistically hope to elect competent representatives, the Constitution is our starting point.  Reading and understanding it is, I believe, essential for every American -- not just every American lawyer (like me) or elected official.  

I am very grateful for having had the opportunity to spend some quality time with a small group of high schoolers who have already learned that very important lesson.

Leaving the courthouse after a complete and total victory is a great feeling, especially when you firmly believed in your case.  However, it is a rare experience in domestic cases such as divorce or custody cases.  It is much more common at trial that you win on some issues, lose on others, and you end up somewhere in the middle of what you wanted and what the other party wanted.  In other words, you end up very close to where you would have been if both parties had settled prior to trial.  In such cases, it makes much more sense to settle instead of experiencing the time, expense, and stress of a trial.

There are too many benefits to voluntary settlement to mention, but I want to focus on a few key benefits.  First, you gain control of your situation.  Judges know the law, but they do not know you or your family.  Courts are overloaded with cases, so you rarely have enough time to present your case at trial.  As a result, judges end up making huge decisions that effect your family without even knowing your family adequately. 

Second, judges will decide your case on the law and generally treat you the same as everyone else.  While fairness and impartiality may generally good character traits for judges, this may not be what is best for your family.  Your family may have unique issues that need unique solutions - not a generic, cookie-cutter solution that the law often requires.  For example, if you want the flexible custody arrangement that works  for your unique needs, you are much more likely to achieve that result through settlement than with a trial.  Also, judges are human and make mistakes.  No matter how strong your case is, you always face a huge risk at trial that the case will be decided against you because the outcome is always unknown. 

Third, you truly save a huge amount of time and money by reaching a settlement.  What may be even more important is the amount of grief and stress you will avoid.  Litigation is always difficult, and when it involves your family, it is even more stressful.  It is not even just the time you spend in court or preparing for court - it affects you every day as you think and stress out about what is going to happen.  Even when it is over, the parties involved will likely have animosity toward each other that do not go away for a long time.  Voluntarily settling your case can help you move on with your life and get along better with the other party.  If you have children together, this is extremely important because you will be dealing with that other person for the rest of your life, and your children will be better off if you can get along.  If the two parents cannot get along, the children suffer the most.  Therefore, this may be the most important reason to settle amicably rather than ongoing litigation and animosity.

Despite the benefits of voluntary settlments, many cases do not settle.  Sometimes this is because one or both parties is simply unwilling to compromise.  There is no such thing as a settlement where you get everything you want and do not give up anything.  If that were the case, the other side would not agree.  Before you start negotiations, you should identify realistic goals and create a plan to achieve those goals.  As part of this process, you must prioritize your goals and identify concessions you can make to help you accomplish your most important goals.  It is difficult to make concessions and compromise, but it helps if you focus on what you are gaining rather than what you are giving up.  It is also better if you demonstrate that you believe in your case and you are willing to take it to trial if necessary.  Even though you hope to avoid trial, you have more leverage in negotiations if the other side knows you are not desperate to settle.  If you do this properly, and the other side is reasonable, you should settle your case much sooner and more satisfactorily than you would through trial. 

Sometimes the other side is unreasonable and will not negotiate in good faith or make any efforts to compromise.  Other times the issues at stake are too important to compromise.  For example, your child's other parent is abusive but wants custody.  In these situations, you must fight for your rights at trial.  You should get a competent attorney who is experienced in handling your type of case.  Although there is a huge risk when you go to trial, you never know, you just might get to experience the wonderful feeling of leaving the courthouse with a complete victory.

About a year ago, I handled an appeal for a custody case where one parent lived here in Arizona, and the other parent lived on the east coast. In that case, an issue came up about Arizona's relocation statute and how or if it applied to the case. The statute says that if both parties live in Arizona and if both parties have visitation rights either through a court order or through a written agreement, then the party seeking to move outside of Arizona (or more than 100 miles away) needs to give the other parent written notice at least 30 days before the move.  That notice is designed to give the other parent time to file something to ask the court to prevent the relocation.

Well, it seemed obvious enough to me at the time that the statute didn't apply to that particular case because only one party lived in Arizona.  I barely mentioned the issue in my brief and oral argument on the case because it seemed clear as could be to me. 

The funny thing is, the Court of Appeals ended up seeing the issue as so important that they made a reported decision out of the case just to say what I thought was incredibly obvious:  The statute didn't apply because only one of the parents lived in Arizona.

Why is that funny?  Well, in the short time since the Court of Appeals issued that reported case for all of Arizona to follow, I've had two and now three cases where the exact issue has come up again.  In those first two cases (the third one hasn't gotten to court yet), we were able to get the action to prevent the relocation dismissed just by citing this case.  I have to admit, it's kind of a cool feeling being able to cite your own case to a Superior Court judge, but it's a far cooler feeling to win.

I learned a big lesson this last week or so.  A few months ago, my client and I went to a temporary orders hearing where the other side was asking for all sorts of money and trying to raise some serious doubts about what my client's real earnings - and therefore, his real ability to pay her huge requests - was.  We didn't do horribly at the temporary orders hearing, but we didn't do very well either, and the judge noted that he had a lot of skepticism about what my client's true income was.

Fast forward a few months, and we were at the trial.  Our whole strategy was getting around this "skepticism" that the judge had about my client's income.  With the extra time that we had at trial (compared to what we had at the temporary orders hearing), we were able to call my client's boss, who spoke very clearly and very convincingly about what my client was actually making.  With the additional time, my client was also able to give very specific testimony about his work, his accounts (including names and dates), and his actual income.  I was also able to get his wife to admit - she actually admitted this! - that she really didn't know what his job duties were, and his testimony on the subject would be a lot more reliable than her conjecture.  At the close of the trial, the judge went out of his way to tell us that the skepticism he had about my client's income was now gone.

The moral of the story?  I think there are two of them.  First, don't give up.  We have the ability in family law cases to resolve concerns and straighten things out, as long as the truth is there, and it really supports our position.  Second, adjustments.  Court proceedings are a lot like sports, where making half-time adjustments, so to speak, is extremely important.  It's an ongoing battle, and whoever can make the appropriate adjustments many times will end up with the upper hand and win.  Sure, it depends on the actual facts of the case, and no lawyer can change facts (and an honest lawyer won't even try to change to facts).  But it is very nice to stick with something, make those adjustments and come out on top.

Child support issues are very important.  They can greatly effect both parents and children and it is important to know your rights when it comes to child support.  Hear are some quick tips:

When can a party modify an order of child support? 

At any time upon a showing of substantial change in circumstances.  This could be a change in employment or a change in family circumstances.

How do I start an child support modification action?

By filing a petition for modification and supplying new support worksheets this will require some simple financial records that you may have on hand.

What is the process like?

You need to petition the court and serve the other party with a summons, a copy of the petition, and the worksheets. Once this is done, you need to file proof of service with the court. In order to serve the other party correctly, it is best to hire a professional process server, but sometimes that is not necessary.

How long does the other parent have to respond?

The responding party's answer must be filed with the court within twenty days after service of the petition or sixty days if served out of state.

Will there be a hearing?

Yes.  For a change of support the court will conduct a hearing and determine if a modification is justified.  

Will it be expensive?

No, not necessarily.  Modifications are relatively straightforward, but you need to take the right steps.  Usually it is much more expensive to do nothing.  You have some options for getting help don't be afraid to ask.

If you have a child support question, contact a Phoenix family lawyer at Gillespie, Shields & Durrant. Don't wait for something to change on its own because it wont.

At Gillespie, Shields & Durrant, we are proud to offer a full range of services for every type of family law issue, including the rights of grandparents seeking visitation for their minor grandchildren.

Under Arizona law, a court considering a request for visitation rights by grandparents must determine if the request is in the child's best interests. Such request must be based on at least one of the following circumstances:

• the parents' marriage has been dissolved for at least three months; or
• one of parents has been missing or deceased for at least three months; or
• the child was born out of wedlock.

Other factors a court must consider when determining the amount of visitation time include:

• past relationship between the grandparent and the child;
• the grandparent's motivation;
• the amount of visitation time requested and its possible adverse impact on the child's customary activities; and,
• in the event one or both of the child's parents are dead, the possible benefit in maintaining an extended family relationship.

At Gillespie, Shields & Durrant, we are delighted to offer a full range of services for every type of family law issue, including the rights of grandparents seeking full custody of their minor grandchildren.

Under Arizona law, a court considering a request for full custody by grandparents of their minor grandchildren must determine if the request is in the child's best interests. The court begins with a presumption that the physical, psychological and emotional needs of the child are best served by having the child in the parent's legal custody.

To rebut this presumption, a grandparent must show by clear and convincing evidence that awarding custody to the parent is not in the child's best interests, and must meet all of the following criteria:

• the parents are not married to each other, or one of them is deceased; and
• it would be significantly detrimental to the child to be or remain in the parent's custody; and
• the grandparent stands in place of the parent and has formed a normal child-parent relationship with the child.

There are certain time requirements set forth by statute in the state of Arizona by which a divorce may be completed. Once a party has filed for divorce and the other party is properly served the time requirements begin and the community is deemed no longer to exist for purposes of income and accruing benefits.