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How Alcohol and Drug Use Affects Custody Decisions

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Find out when parents may lose custody or visitation rights because of their substance abuse.

If you believe that your child’s other parent is abusing alcohol or drugs—or you’re the one being accused of substance abuse—you’ll want to know how that could affect custody and visitation. Moderate drinking usually doesn’t get in the way of a parent’s ability to take good care of a child. But a parent’s habitual, excessive drinking or other substance abuse can pose a danger to children. Learn how judges deal with these issues in custody cases, and how to get a change in custody or visitation because of substance abuse or recovery.

When Do Courts Get Involved in Child Custody?

Courts play a role in decisions about child custody and visitation (sometimes called parenting time) in various situations, including when:

  • parents are getting divorced
  • unmarried parents have a legal dispute about custody of their children
  • divorced or unmarried parents request a change in the current custody orders, or
  • child protective services or a similar agency files a petition with the juvenile court (in what’s usually called a “dependency” case) based on allegations of child abuse or neglect.

This article will focus on the role of substance abuse in custody disputes between parents in family courts, rather than dependency cases in juvenile court (which have their own procedures and rules).

Overview of Child Custody

The most important thing to understand about custody cases is all states require judges to make their decisions based on the children’s best interests. It’s also important to understand the difference between legal and physical custody. Legal custody refers to the parents’ authority to make important decisions about their children’s care and upbringing, such as medical care and education. Physical custody refers to where the children will live. Within each of those categories, one parent may have sole custody, or both parents may have joint custody.

Traditionally, one parent would have sole physical (and often legal) of the children after divorce, while the other parent would have visitation with the kids. These days, it’s more common for judges to award joint legal custody and at least some form of joint physical custody (often called shared parenting time). State laws and courts recognize that it’s usually in the best interests of children to have strong relationships with both parents after divorce, and for both parents to be involved in their children’s lives—unless there’s a reason that would be harmful to the kids.

If there’s convincing evidence that a parent has a habit of drinking excessively, driving under the influence, or using illegal drugs, the judge will almost certainly take that into account when deciding which parenting arrangements would be best for the children.

When Do Judges Consider Substance Abuse in Custody Decisions?

State laws typically spell out a long list of factors that judges must consider when they’re deciding on custody arrangements that would be in the children’s best interests. In some states, the list specifically includes consideration of a parent’s substance abuse. For example:

  • California law requires judges consider either parent’s “habitual or continual abuse” of alcohol or certain prescribed drugs, or the habitual or continual illegal use of certain drugs. And if a judge awards sole custody or unsupervised visitation to a parent despite allegations of substance abuse, the judge must explain the reasons for that decision. (Cal. Fam. Code § 3011 (2023).)
  • Arizona law requires judges to presume that it’s not in the child’s best interests for a parent with a recent history of substance abuse to have sole or joint legal decision-making (legal custody). The presumption applies when the judge has found that the parent has abused drugs or alcohol, or has been convicted of a drug offense or a DUI, within 12 months before a custody request was filed. But a judge may decide that the parent has overcome the legal presumption based on evidence such as negative drug tests for the previous five years. (Ariz. Rev. Stat. § 25-403.04 (2023).)

But even when laws on child custody don’t specifically mention substance abuse, states typically authorize judges to consider any circumstances that are relevant to the child’s best interests. Most judges would probably conclude that it’s not good for a child’s physical safety and emotional well-being to be in the care of a parent whose behavior and decision-making are affected by a substance abuse disorder.

So if there’s convincing evidence that a parent has a habit of drinking excessively, driving under the influence, or using illegal drugs, the judge will almost certainly take that into account when deciding which parenting arrangements would be best for the children. But that doesn’t necessarily mean the judge will strip that parent from any parenting time or decision-making authority. Instead, judges will usually try to find ways to protect the children while visiting with the substance-abusing parent (more on that below).

Can Parents Lose Custody for Drug Use or Alcoholism?

Not only may a parent’s substance abuse factor into initial custody decisions, but excessive drinking or drug use could also play a role after the divorce or other custody orders are in place. If a parent with sole or shared custody (or even just visitation rights) begins to show worrying signs of substance abuse that could endanger the child, the other parent may go back to court to request a custody modification.

The specific requirements vary from state to state. In general, however, if you want to change the current custody orders, you’ll have to show that:

  • there’s been a substantial change in circumstances, and
  • the modification you’re requesting will be in the child’s best interests.

If you suspect that your co-parent’s alcohol or drug use has changed significantly, or if you’ve only recently discovered substance abuse that was previously hidden, you’ll need evidence to support those suspicions (more on that below), as well as evidence of the potential harm to your child. If that evidence convinces the judge that a modification is warranted, the judge could change where the child lives, limit the substance-abusing parent’s time with the children, or place restrictions on visitation. A parent might also lose sole or shared legal custody, if the substance abuse is serious enough to impair that parent’s decision-making abilities.

Substance abuse may also lead to reports of child abuse or neglect. If a juvenile court removes a child from the parent’s custody in dependency proceedings, that parent will generally have a certain period of time to get treatment and take other actions (such as regular drug testing or alcohol monitoring) to convince the judge that it’s safe to return the child to that parent’s care. But if the judge finds that those “reunification” efforts have failed, the parent could not only lose custody—but could be stripped of all parental rights over the child.

Can You Lose Custody Because of a DUI?

If you’ve been convicted for driving under the influence of alcohol or drugs, that could be used against you as evidence of a substance abuse problem that might endanger your children. It’s not very likely that one simple DUI, on its own, would lead you to lose custody or visitation rights. But some aggravating factors could lead to that result, including when you:

  • had a child in the car while you driving under the influence
  • had a very high blood alcohol concentration (BAC), or
  • have had repeated DUI convictions.

Visitation Conditions for Parents With Substance Abuse Problems

Because of the recognition that children are usually better off when they have continuing relationships with both of their parents, judges very rarely cut off all contact between a parent and child just because of the parent’s substance abuse. Even if there’s convincing evidence that it’s potentially dangerous for the child to stay overnight with that parent, a judge will typically allow visitation with restrictions or conditions, such as:

  • supervised visitation, often with a social worker or other reliable monitor in the room at all times
  • a requirement that the parent participate in an appropriate type of treatment or rehabilitation, including AA or NA, and
  • regular drug testing or alcohol monitoring.

Often, these conditions will be for a certain period of time and may be lifted if the parent shows success at treatment and evidence of ongoing sobriety.

If you’ve lost custody or visitation rights because of substance abuse, successful rehab treatment could help you regain those rights in the long run.

How Does Drug or Alcohol Rehabilitation Affect Custody?

If you have custody of your children and decide to go into a residential treatment program, you’ll obviously have to arrange for the children’s care while you’re gone. You might be able to make temporary, informal arrangements, as long as you and your co parent can agree (and there isn’t an active court case dealing with custody). Otherwise, however, you run the risk of losing custody, at least temporarily.

That said, if you’ve lost custody or visitation rights because of substance abuse, successful rehab treatment could help you regain those rights in the long run. Just as your co-parent may ask a judge to change custody because of your alcoholism or drug use, you may also go back to court and request more parenting time based on evidence that you’re in stable recovery and are ready to take good care of your children.

Does Recreational Drug Use Affect Child Custody?

Because judges may consider any factors that they believe are relevant to the child’s best interests, they have a lot of leeway when deciding whether a parent’s recreational drug use should affect custody and parenting time. Even if a parent isn’t addicted, some judges may believe any use of illegal drugs is evidence that the parent is unfit—particularly if the parent is convicted of illegal drug possession.

But what about legal drugs? If you live in one of the states that have legalized recreational cannabis, could your casual use of marijuana count against you in a custody dispute? It depends, not only on the custody laws in your state but also on the judge and the particular circumstances in your case. For example, a judge is likely to conclude that you’ve been endangering your child if you:

  • leave cannabis gummies in a place where the child could find and eat them
  • expose the child to second-hand marijuana smoke, or
  • show up in your car, obviously high, to pick up your child for parenting time.

Legal medical cannabis use won’t usually affect custody rights as long as you have a documented medical need and you use it responsibly, in a way that doesn’t put your child in harm’s way.

How to Prove Substance Abuse in Custody Cases

If you want to limit your ex’s parenting time because of alcohol or drug abuse, you’ll need evidence to support your claims. This evidence could include:

  • records of run-ins with law enforcement, including convictions for disorderly conduct, driving under the influence, or illegal drug possession or use
  • testimony from witnesses who’ve observed the parent’s drinking problem or drug use
  • employment records showing negative work effects of substance abuse
  • medical records (when available, given patient privacy protections)
  • social media posts that reveal excessive drinking or drug use
  • repeated, incoherent texts or voicemails indicating that your coparent is often drunk or high
  • reports from custody evaluations on the effects of a parent’s drinking or drug use, and
  • results of drug tests (more below on when testing may be required).

When May Judges Require Drug Testing in Custody Cases?

Some states allow judges to order drug testing based on one parent’s accusation that the other parent is abusing drugs or alcohol. But in other states, you’ll need more than a bare accusation to force testing. For instance:

  • Oklahoma law allows judges to order blood, saliva, or urine testing in any custody or visitation case. The law doesn’t require any evidence of substance abuse before judges may require parents to undergo these tests. (43 Okla. Stat. § 110.2 (2023).)
  • In California, a judge may order anyone seeking custody or visitation to undergo the “least intrusive method” of alcohol or drug testing, but only if the judge has found (based on a preponderance of the evidence) that the parent has engaged in “habitual, frequent, or continual” use of alcohol or illegal drugs. However, the law makes clear that a positive test result, by itself, won’t be a reason to deny or take away that custody. (Cal. Fam. Code § 3041.5 (2023).)
  • In New York, as in many states, the law allows judges to order physical or mental examinations whenever there’s a dispute in a legal case about someone’s physical or mental condition. So a judge may order testing when, for instance, a parent has admitted past drug use but claims to be clean and sober now. However, New York courts have held that judges may not require a parent to submit to drug and alcohol testing “virtually at the whim” of the other parent. (N.Y. C.P.L.R. § 3121; Burgel v. Burgel, 141 A.D.2d 215 (N.Y. Sup. Ct. App. Div. 1988), Johnson v. Johnson, 303 A.D.2d 641 (N.Y. Sup. Ct. App. Div. 2003).)

Alcohol and Drug Testing to Keep or Regain Custody Rights

If you’re the parent who’s been accused of substance abuse in a custody dispute, you may voluntarily take a drug test to disprove those claims, even if a judge hasn’t required you to do so.

And if you’ve already lost custody or visitation rights because of your alcoholism or drug use, you may submit to regular alcohol monitoring or drug tests to show that you’ve been successful in recovery. In that situation, it’s usually up to the judge to decide how long you must be clean and sober before you can have unsupervised visitation or increased parenting time.

How Can Parenting Agreements Address Drug or Alcohol Use?

Whenever you have a custody dispute, you always have the option of reaching a settlement agreement, rather than going to trial and having a judge decide for you. If you have any concerns about your co-parent’s drinking or drug use, you may include provisions in your settlement agreement to address those concerns, such as a “sobriety clause” that requires both parents to refrain from using alcohol or recreational drugs 24 hours before and during parenting time. Once a judge has approved your agreement, it’s typically made part of an official court order. then, if the other parent violates any of the provisions, you may go back to court to enforce the order.

Getting Help With Custody Disputes Over Substance Abuse

Most parents are able to work out parenting agreements, either on their own or with the help of custody mediation. But you should speak with a lawyer if you’re concerned about your child’s safety due to your co-parent’s drinking or drug use—or if you’re the one at risk of losing custody or parenting time due to allegations of substance abuse. These disputes can be difficult, emotionally and legally. An experienced child custody lawyer can explain how the law in your state applies to your situation, and can help you gather the kind of evidence you’ll need to protect your children and your parental rights.

Source

https://www.divorcenet.com/resources/how-alcohol-and-drug-use-affects-custody-decisions.html

*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs. 480-744-7711 or [email protected]

Speak With One Of Our Child Custody Attorneys In Scottsdale

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Canterbury Law Group’s child custody  in Phoenix and Scottsdale will advance  your case with personal attention and always have you and your children’s best interest in mind when offering legal solutions.

We are experienced family law attorneys and will fight for you to obtain the best possible outcome in your situation. Our firm will represent you fully, so you can get on with your life. Call today for an initial consultation! 480-744-7711 or [email protected]

Child Custody
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Can a Custodial Parent Move a Child Out of State?

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Looking to learn about Arizona child custody laws? When parents divorce or separate, care for the child or children must continue. The court will decide a parenting plan concerning their welfare and health if the parents are unable to agree on a plan concerning the raising of the children. This frequently establishes which parent will have the role of primary caregiver and how much time they will spend with each of their parents.

In certain situations, relatives, unmarried parents or other persons who may or may not be directly related to the parents may petition the court for parenting time or custody. The court will always base their decision on the best interests of the child or children involved.

Learn how a parent’s move can affect custody and visitation, when custodial parents need permission before taking the child to another location, and how judges decide whether to allow a planned move when the parents can’t agree.

Court-ordered custody arrangements can work well for years, especially when both parents live close to each other. But what happens when a parent wants to move with the child to another state, another area in the same state, or even another country? These “move-away” cases are among the most difficult types of custody disputes, because they often involve a conflict between the custodial parent’s right to move freely and the right of both the other parent and the child to maintain their relationship.

Overview of Child Custody Orders

In order to understand the issues involved in move-away cases, it’s important to know some of the basics of child custody laws. When parents decide to divorce, they will need to make legal custody arrangements that meet their children’s best interests. Parents who were never married but are separating (or never lived together) may also seek custody orders.

Child custody arrangements include both legal and physical custody. In most states, it’s the default preference for parents to share joint legal custody—meaning they make the important decisions together about their child’s health, education, and welfare. Physical custody usually refers to where the child lives most of the time. But it’s also becoming more common for parents to share joint physical custody, so they can both spend a significant amount of time with their child.

If parents can’t agree on custody (often called a “parenting plan”), a judge will have to make these decisions for them. Whether the custody arrangements result from the parents’ agreement or a judge’s decision, the court will issue legal custody order that spells out exactly how the parents will divide custody rights and responsibilities.

Who Is the Primary Custodial Parent?

Even when parents share joint physical custody, one parent is typically designated as the primary custodial parent. In a typical joint custody situation, for example, the child lives with the primary custodial parent on school weeknights but spends weekends, some holidays, and at least part of school vacations with the other parent (who might be called the “noncustodial parent” even when that parent shares physical custody).

Changes to Joint Custody Orders When a Parent Moves

Parents may ask a judge to make changes in existing custody orders, but they usually must show that there has been a substantial change of circumstances to justify the modification. As with all custody-related decisions, the judge will decide whether the modification would be in the child’s best interests. The parents may agree with each other about new custody arrangements, but a judge must approve their agreement to make it part of a new order.

When the primary custodial parent plans to move with the child, the other parent may request a custody modification—for instance, to seek primary physical custody or to ask for a change in the visitation schedule. And sometimes, parents who don’t have primary custody—but share joint custody—might request a change in the existing parenting plan based on their own planned relocation (more below on that issue). The judge may consider the relocation as a substantial change of circumstances, especially if it will significantly affect one parent’s ability to maintain a meaningful relationship with the child (more below on what goes into the judge’s decisions in move-away cases).

When Custodial Parents Need Permission to Move With a Child

In many situations, custodial parents must get permission—from the other parent or a judge—before they are allowed to move with a child out of the state or a certain distance away from their current residence. Sometimes, these restrictions are in state law. Other times, they’re in the custody orders (typically part of a final divorce decree) or in temporary restraining orders issued during a divorce proceeding.

State Laws Restricting Relocations With Children

Some states have laws that require parents to give advance notice and get permission from the other parent or a judge before moving a child. Some of these laws apply only to moves out of state, while others also apply to moves of a certain distance within the state. For example:

  • In Minnesota, whenever the noncustodial parent has parenting time under the custody order, the custodial parent may not move the child’s residence to another state without a court order or the other parent’s consent. (Minn. Stat. § 518.175 (2022).)
  • In Nevada, parents with primary physical custody must get permission from the other parent or the court before relocating with the child outside of Nevada or somewhere in the state that’s far enough away to “substantially impair the ability of the other parent to maintain a meaningful relationship with the child.” (Nev. Rev. Stat. § 125C.006 (2022).)
  • In Florida, whenever parents want to move with their children at least 50 miles from their principal residence, they must get written consent from the other parent (or anyone entitled to time-sharing with the child). Without that consent, parents must file a court proceeding to seek permission from a judge. (Fla. Stat. § 61.13001 (2022).)
  • In Arizona, whenever parents have joint legal custody or shared parenting time, and both of them live in the state, a parent who wants to relocate the child—whether out of state or more than 100 miles within Arizona—must give the other parent at least 45 days’ advance notice. The nonmoving parent may then file a petition with the court to prevent the move. (Ariz. Rev. Stat. § 25-408 (2022).)

These state laws generally spell out the factors judges must consider when deciding whether to allow the relocation (more on that below).

Relocation Restrictions in Custody Orders or Agreements

Even in states where the laws don’t explicitly require permission before moving with a child, judges in some states may include similar restrictions in divorce judgments or custody orders.

Typically, when parents have signed a divorce settlement agreement—which includes their agreements on custody and coparenting arrangements—the agreement is made part of their divorce judgment. But when the agreement includes provisions on what will happen if the noncustodial parent moves with the child, those provisions won’t necessarily control the outcome of future legal proceedings if they violate state law—for instance, if the agreement calls for an automatic change in custody without requiring a judge to determine that the modification would be in the child’s best interests.

Temporary Restraining Orders During Divorce Proceedings

After you’ve filed for divorce, it’s common for the court to issue “temporary restraining orders” (TROs) that are meant to maintain the status quo in terms of both parents’ access to your child or children. Typically, these TROs prohibit either spouse from taking a child out of the state without the other parent’s permission.

Often, one or both of the spouses will request TROs. But in some states, standard TROs take effect automatically as soon as a spouse files divorce papers. In California, for example, one of the initial divorce forms (the summons) must include an automatic temporary restraining order (ATRO) that prohibits either spouse from removing their child out of the state—or even applying for a passport for the child—without the other parent’s advance, written consent or a court order. (Cal. Fam. Code § 2040 (2022).)

Parents could face serious consequences if they move a child in violation of a law or court order.

What If Custodial Parents Move a Child Without Getting Necessary Permission?

Parents could face serious consequences if they move a child in violation of a law or court order, including:

  • contempt orders, which could result in fines, jail time, or both
  • losing primary physical custody if the other parent requests a custody modification based on the move, or
  • criminal charges, such as for parental child abduction or kidnapping.

If you plan to move—or even travel—with your child, make sure you know whether you’ll need permission. Check your custody order (which may be part of the divorce judgment) for details about any requirements. And if your divorce case is still ongoing, make sure you carefully read all of the paperwork to see if it includes restrictions on moving or traveling with your child.

Criminal Charges for a Custodial Parent Who Took Her Child Out of State Without Permission

In an extraordinary relocation case, a California mother was charged with parental child abduction and kidnapping after she took her daughter with her to visit family in the Philippines while her divorce was ongoing. Her defense lawyer, Stacy Barrett (who’s now a Nolo editor), explained that the mother had temporary legal and physical custody while her divorce was ongoing. The father had only supervised visits with the girl after credible allegations that he’d been touching her inappropriately. But under the ATROs issued in all California divorces, neither parent was supposed to leave the state without court permission.

While the mother was gone, the father went to court and got permanent legal and physical custody of his daughter. The mother was arrested as soon as she returned to the U.S. Although the jury ultimately acquitted the mother, Barrett believes the case might have easily gone the other way. “My client could’ve been sentenced to 13 years in prison.”

Can Parents Agree to a Planned Relocation With Children?

If the noncustodial parent consents to a custodial parent’s move, both parents may also agree on a new custody arrangement that considers the new location and provides the noncustodial parent enough of time with the child. They’ll both need sign a written agreement (sometimes known as a stipulation).

Even when the parents agree to a custody modification, however, they’ll need to get a judge’s approval. If the agreement is in the child’s best interests, the judge will approve it and make it part of a new court order.

When parents can’t agree, they may hire a coparenting counselor or custody mediator to help them find a solution that works for both of them and the child. But if that doesn’t work, and state law or the existing custody order requires a judge’s permission for the planned moved, the moving parent will have to go to court and file legal paperwork (a “petition” or “motion”) asking the judge to grant the request to relocate.

How Do Judges Decide Whether to Allow a Custodial Parent to Relocate?

As with all custody disputes, judges must follow state law when deciding whether to allow a custodial parent to move with the children, or whether to grant the nonmoving parent’s request to modify the existing custody order. State laws on relocations and child custody vary a lot, so the exact circumstances that the judge must consider will depend on where you were divorced (or where your previous custody order was issued).

Generally speaking, judges will weigh the potential benefits and disadvantages of the move in terms of the child’s best interests. For example, a planned move might increase a child’s overall quality of life as a result of:

  • the custodial parent’s increased earnings from a new job or educational opportunity in the new location
  • closer proximity to the custodial parent’s extended family, who can help with child-care and support, or
  • the custodial parent’s new marriage, which could provide the child with the benefits of a two-parent family.

On the other side of the equation, the judge will consider possible negative effects of the planned move on the child’s well-being—especially reduced contact with the noncustodial parent.

Different states place more or less weight on the custodial parent’s right to move with a child. In some states, the law presumes that a custodial parent has the right to change a child’s residence unless the other parent provides evidence to convince a judge that the move would harm the child’s welfare. In other states, the parent who wants to move must prove that it would be in the child’s best interests. And still other states don’t tip the scales for or against the moving parent.

State laws also list specific factors that judges must consider when they’re deciding whether to allow a parent to move with a child or whether to grant the other parent’s request to change custody because of the move. Typically, these factors include:

  • the effect of the move on the child’s ability to continue to maintain a close, meaningful relationship with the other parent despite the distance, including whether the parents have the resources to afford long-distance visitation
  • whether the custodial parent has a good reason for needing to relocate or is simply trying to frustrate the other parent’s ability to have parenting time with the child
  • the noncustodial parent’s reasons for resisting the move—for instance, whether they’re genuinely concerned about the potential harm to the parent-child relationship or are simply hoping to get a reduction in child support
  • the child’s need for stability in other relationships, such as at school, with friends, and in religious groups, and
  • the child’s preference in the custody dispute, as long as the child is mature enough to have a reasonable opinion about the move.

If an alternating weekend or frequent visitation schedule is impossible after either parent’s move, judges will typically award the noncustodial parent extended school break, holiday, and summer vacation visits.

What Happens When a Noncustodial Parent Wants to Move?

Noncustodial parents usually don’t need to get approval for a move from the court or the child’s other parent unless they wish to relocate with the child.

But does a noncustodial parent give up visitation rights after relocating? In most cases, no. If it’s feasible to continue the current custody and visitation arrangements after the move, both parents will need to abide by the orders. However, the court doesn’t expect a custodial parent or a child to follow a custody order that no longer benefits the child or that burdens the family.

For example, suppose your custody order allows you parenting time (visitation) with your child every other weekend. If you relocate 45 minutes away, you can probably continue with that arrangement because it wouldn’t be disruptive or harmful to your child. However, if your planned relocation will be far enough away that it would be impossible or very difficult (or expensive) to continue the current arrangements for parenting time, you must act before moving or risk losing time with your child.

If you’re a noncustodial parent who’s planning to relocate, you should first speak with the custodial parent and try to work out a new, mutually beneficial arrangement for parenting time. Once you agree, you may submit your written agreement to the court for approval. As long as the agreement benefits the child’s best interest, the judge will generally approve it.

If the custodial parent won’t agree to change the current custody and visitation order, you’ll need to file a motion with the court to change the order. Ahead of the court hearing, you should prepare a detailed visitation schedule that addresses how you and the other parent will handle transportation expenses and remote communication (like regular video calls). The judge will evaluate the case, including the reasons for relocation, and create a new visitation agreement if that would serve the child’s best interests.

If an alternating weekend or frequent visitation schedule is impossible after either parent’s move, judges will typically award the noncustodial parent extended school break, holiday, and summer vacation visits.

Parents must understand that, until they agree (in writing) to a new arrangement or the court changes its orders, they must both comply with existing orders.

Can You Move Your Child Out of State When There’s No Custody Agreement or Order?

What if you don’t have an existing custody order (including a temporary order during a divorce)? Can you move with your child? And if your kid’s other parent wants to relocate with the child, can you do anything about it? The answers to those questions depend on the circumstances.

You’re generally free to move with your child if you aren’t married to the other parent, the child has been living with you, and neither parent has filed a custody proceeding. However, keep in mind that both parents (whether married or not) have parental rights over their children, with or without a court order. For example, that means if you’re a single mother and you move with your child, the father could file a legal proceeding to establish parentage (paternity) and seek custody or visitation—especially if he’s been seeing the child regularly and wants to keep that up.

You should also be aware of potential legal problems when you take or keep a child out of the country without the other parent’s consent. If your child has been living in the U.S., and you take the child to another country that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, the other parent may file a legal proceeding to get the child back. These “Hague Convention” cases often arise when marriages are in trouble and one parent takes the kids to stay with family in another country (or keeps them there beyond the time of a planned visit) while contemplating divorce. Learn more about international child custody and abduction laws.

Should I Hire an Attorney for a Move-Away Dispute?

If you and your child’s other parent can’t agree about a relocation on your own or in mediation, you’ll almost certainly need to hire an experienced family law attorney to help you through the legal process. Move-away cases are one of the most challenging and complex custody disputes. With so much at stake, you should get help from a professional who can represent your interests and protect your rights.

Source

https://www.divorcenet.com/states/nationwide/custodial_parent_removing_child

Speak With Our Child Custody Attorneys In Scottsdale

(480) 744-7711
INITIAL CONSULTATION

Our child custody and guardianship attorneys in Phoenix and Scottsdale will advance your case with concern and personal attention and always have you and your children’s best interest in mind when offering legal solutions.

We are experienced family law attorneys and will work with you to obtain the best possible outcome in your situation. We shall represent you fully, so you can get on with your life. Call today for an initial consultation! 480-744-7711 or [email protected]

Child Custody, Child Custody & Parenting Time
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Written by Canterbury Law Group

Physical Custody

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There are various forms of custody. After a divorce or legal separation, a child’s living arrangements are referred to as physical custody. It’s crucial that both parents are aware of what these phrases represent and how their custody agreement may be used to impose obligations on them.

Depending on the situation, different agreements will be made for child custody and parental rights. Prior to a custody dispute, parents should be aware of the different types of custody.

The physical custody of a kid is described in general terms in the paragraphs that follow. In the broader context of custody disputes, it also analyzes what physical custody entails.

How Does Physical Custody Work?

The legal and practical obligation of a parent or guardian to give a kid a home is referred to as physical custody. It is frequently decided in family court as a component of a custody dispute. A custody agreement or court decree specifying the parameters of custody may be used for this.

The child’s everyday residence is referred to as having physical custody. It involves making choices on the child’s daily schedule and upbringing, including food, clothing, and bedtime. The court has the discretion to award sole physical custody to one parent. Physical custody may also be shared by both parents. Legal custody is distinct from physical custody.

Legal custody is the authority to make crucial choices regarding a child’s upbringing. Decisions about extracurricular activities, healthcare, and education may fall within this category. A single parent may also be given sole legal custody by the court. Joint legal custody is another option when both parents share custody.

The Child’s Best Interest Standard

The child’s best interests will ultimately take precedence when deciding who will have primary custody of your child. This is the fundamental principle when considering custody arrangements.

This criteria is used by the courts to decide what arrangement will best serve the needs and interests of the kid. The courts will take into account things like domestic violence and drug abuse. When deciding on legal and physical custody, they will also take into account each parent’s capacity to make important choices for the kid.

Schedules for custody and visitation will also be outlined in the parenting plan. The custody arrangement is used to calculate child support. Every child custody dispute is framed by the best interests of the kid criteria. It is utilized to make sure that the welfare of the child comes first.

Right to visitation

The majority of contemporary custody agreements favor joint custody between the parents. This holds true unless one parent is deemed “unfit.” A parent is referred to as “custodial” if they have primary physical custody. The “non-custodial” parent is the other parent. They might be given visitation (sometimes known as “parenting time”) rights.

Some states also provide grandparents certain visitation privileges.

Solitary Custody

But occasionally, the court will grant sole custody to one parent. A parent who is granted sole custody of a kid has the child’s sole physical and legal custody.

Only when the other parent is deemed unsuitable or incapable of raising the child does the court normally grant sole possession. Abuse, drug addiction, and criminal activity are a few examples. The court might provide the other parent some visitation if one parent had sole custody, but it would be far more restricted than in a shared legal/physical custody arrangement.

Do You Need Assistance With a Physical Custody Dispute? Get Legal Assistance Now

A decision about physical custody is usually problematic emotionally. An experienced lawyer will understand how to cooperate with the court to obtain the greatest result for your child. They may be able to offer you useful legal counsel relevant to your particular circumstance.

Find a family law attorney in your area who has experience resolving custody disputes by starting your search right away.

Speak With Our Guardianship Lawyers in Arizona

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Contact Canterbury Law Group today if you need an experienced child custody lawyer or guardianship lawyer in Phoenix or Scottsdale, Arizona to help with your case. Our experienced family law attorneys will work with you to achieve the best outcome for your situation. Call today for an initial consultation! 480-744-7711

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What Can and Cannot be Included in Prenuptial Agreements

Before getting married, no one wants to consider getting a divorce. Prenuptial agreements, often known as premarital agreements or prenups, assist in establishing specific conditions if the marriage terminates.

For instance, in the event of a divorce, a person with a legacy family business may try to shield those assets from the opposing side.

A prenuptial agreement has several restrictions on what can be written in it. This article gives a general summary of what prenuptial agreements may and may not contain.

What May Be Covered by a Prenuptial Agreement

Prenuptial agreements frequently contain distinctions, safeguards, and clauses pertaining to money. The parts that follow in this article go into more information about several prenuptial agreement sample clauses.

Property division distinctions (marital vs. separate property)

What constitutes separate property and what constitutes marital property is governed by specific legislation in each state. Some states have “community property” rules, which frequently provide for equal asset distribution.

The court will divide all marital assets in accordance with state law upon separation brought about by death or divorce. You can utilize a prenuptial agreement to prevent a judge from deciding what happens to the property you acquired during your marriage.

Which assets ought to be treated as separate properties can be specified in the prenuptial agreement. This could be real estate you held before to the marriage or belongings from a previous marriage.

Other assets will be regarded as marital assets and divided by the court if they are obtained after the marriage is consummated.

In some states, you can choose whether you’ll receive alimony payments or not. Some states forbid doing this. When preparing the prenuptial agreement, make sure you are aware of the legal requirements in your state or consult a family law attorney.

Protections against the Debts of the Other Spouse

If there is no prenuptial agreement, creditors may seize marital assets even if only one spouse owes money. Limit your debt liability in a prenuptial contract to prevent this.

Arrangements for Children of Former Relationships

A prenuptial agreement might be used if you have children from a prior relationship and want to make sure they inherit any of your possessions.

Protections To Maintain Family Ownership

If you have a family artifact, family company, potential inheritance, or other item of property that you wish to maintain in your birth family, you can state it in your prenup.

Estate Plans’ Protections

Prenuptial agreements are just one step in making sure your estate is distributed according to your preferences. Keep in mind that additional papers, such as wills and living trusts, must be drafted and kept secure.

Descriptions of Spouses’ Responsibilities

There are several justifications for a prenuptial contract. The following list of items is typical in prenuptial agreements:

separate companies
retirement advantages
Income, claims, and deductions for submitting your tax returns
control of home expenses and bills
control of any joint bank accounts
Investment agreements for specific purchases or endeavors, such as a home or business
control over credit card payments and usage
investment contributions
Distribution of property to the survivor in the event of death, including life insurance
arranging for one of you to attend school.
Resolution of possible disputes through mediation or arbitration

What Prenuptial Agreements May Not Contain

What can and cannot be mentioned in prenuptial agreements is governed by state law. The following is a list of things that the majority of states prohibit in prenuptial agreements:

Dispositions Outlining Any Illegal Activity

You are not allowed to include any illegal provisions in your prenuptial agreement regardless of the state. By doing so, the entire prenuptial agreement or specific portions run the risk of being thrown out.

Making decisions about child support or custody

Child support and custody clauses are not permitted in prenuptial agreements. The determination of child support is ultimately up to the court. The “best interest of the child” standard is used by the court to decide child support.

Prenuptial agreements that include child support, custody, or visitation cannot be upheld by the court. This is due to the fact that it is against the law.

What is in the child’s best interests is decided by the court. They wouldn’t take away the child’s right to support or the chance to interact with a healthy parent.

Losses of Alimony Rights

This is the clause that judges most frequently strike down. Several states outright forbid this.

Some states frown upon it and place restrictions on your capacity to renounce your alimony rights. Alimony waivers are legal in some states. Make sure to research the laws of your particular state.

Divorce-Encouraging Provisions

Prenuptial agreements are carefully examined by judges to search for anything that provides a financial incentive for divorce. If a clause could be seen as encouraging divorce, the court will invalidate it.

Any clause detailing how property would be divided used to be seen by courts as favoring divorce. Judges pay close attention because society wants to avoid divorce.

Information Regarding Personal (And Not Financial) Issues

Personal preferences cannot be included in a prenup. This could include agreements over who would do what tasks, where to spend the holidays, whose name to use, child-rearing specifics, or how to interact with particular relatives.

Prenuptial agreements are made to handle problems with money. Any clause addressing subjects other than money will not be upheld.

When a contract mentions personal domestic issues, judges become uneasy. They frequently reject the document because they think it is pointless.

If you and your spouse want to reach an understanding on such issues, do so in a different document. Just be aware that a court would not be able to enforce this document.

Obtain legal guidance for prenuptial agreements

Prenuptial agreements are advantageous to both parties since they establish the parameters of a marriage before issues occur.

But before being signed, every prenup should be thoroughly reviewed by an attorney. Critical mistakes may render the entire agreement or a portion of it invalid.

To get legal counsel and peace of mind, contact a local family law attorney right now.

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Prenuptial Agreement Pros

  • Prenuptial agreements serve the purpose of protecting children and grandchildren’s inheritance rights from a former marriage.
  • A premarital agreement can protect a professional or business practice so it does not become divided and your former spouse does not have involvement or control of the business should you divorce.
  • A premarital agreement can protect a spouse who is debt-free from assuming debt obligations the other party has.
  • A premarital agreement can ensure you will be fairly compensated should you be giving up a successful and lucrative career should the marriage not survive.
  • A premarital agreement can put in writing any responsibility and decision making sharing the parties agree too, prior to marriage as well as addressing financial aspects of the marriage.
  • The amount of spousal support one spouse will have to pay the other if the divorce can be decided in a premarital agreement.
  • The finances of older persons or persons of substantial wealth entering into their second or more marriage can be protected with a premarital agreement.

Prenuptial Agreement Cons

  • You may have to concede your right to inheritance from the estate of your spouse when they pass away. However, the law states you are entitled to a portion of the estate if your spouse has not made a provision for such in their will.
  • You may be entitled to a share of the increase in the value of a business your spouse owns if you have made a contribution such as taking care of the home or entertaining clients. However, in a premarital agreement, you may not be entitled to claim a share of that increased value. In many states, the law says the value increase is marital property considered to be divisible.
  • A lack of trust may result from commencing a relationship with a contract at the outset.
  • It is tough to see how issues in the future may be handled so keep in mind, seemingly simple compromises made in the romantic period before marriage may have a significant impact later on.
  • A spouse who does not earn a wage or earns only a low wage may not be able to keep the lifestyle they have become used too while in a marriage if the agreement has spousal support limits the spouse has an entitlement too.
  • Every relationship has its honeymoon stage where a spouse who is in love will not make wise financial decisions as they cannot see the relationship ever terminating. A prenuptial agreement helps with this.

Get Professional Legal Assistance To See If A Prenup Is Right For You

If you, or you and your future spouse are together thinking about a premarital agreement, it is vital to look at the pros and cons at the outset. The experiences of a family law attorney can be very helpful and it is paramount each partner consults a different attorney from different law firms, to make sure the rights and interests of each partner are represented.

Source:

“Pros and Cons: Prenuptial Agreements.” Findlaw, family.findlaw.com/marriage/pros-and-cons-premarital-agreements-prenuptials.html.

Contact Our Prenuptial Agreement Lawyers in Scottsdale

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Consulting with a talented Scottsdale prenuptial agreement lawyer or family law attorney who is knowledgeable and experienced in drafting and litigating premarital agreements will save you a great deal of grief and expense in the future. Contact Canterbury Law Group today.

*This information is not intended to be used as legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs. 480-744-7711 or [email protected]

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What Is Custodial Interference?

What Is Custodial Interference

What does Custodial Interference mean? In simple terms, when one parent attempts to create disruption to the custody rights of the other parent of the child or children, this is known as custodial interference.

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Often a highly contentious issue, when custody orders are interfered with it can lead in some cases to consequences of a criminal nature. However, there are a very few situations where it may be legally permissible to temporarily interfere with the custodial rights of the other parent. The following are important facts you should be aware of regarding custodial interference and what can be done regarding it.

Types Of Custodial Interference

There are many ways custodial interference can happen. Here are some examples:

  • Making a visitation upon the child or children while the other parent is supposed to have custody of the child or children.
  • When the other parent has a planned and a scheduled visit, the refusal to release the child or children to the other parent.
  • Limiting the telephone or online contact the child or children has with the other parent.
  • Not returning the child or children on time for a planned exchange.
  • Using enticements to turn the child or children against the other parent.

However, in certain situations, custodial interference is not a violation of the law. For example:

  • When you are protecting a child or children from danger.
  • When previously made agreements disrupt custodial arrangements.
  • When outside events prevent a parent making a timely transfer of the child or children (bad weather being one example.)

What Can Be Done?

A parent can report to law enforcement and the courts any examples of custodial interference. Courts will often try to remedy the ongoing situation. Here are a few ways they try to achieve this:

  • Instituting revised and specific orders for visitation.
  • Instituting make up time for visitation purposes.
  • Family mediation or therapy.

Depending on the situation more severe intervention may be required – a parent may request greater relief. Examples include:

  • Third parties being present at supervised visits.
  • A neutral location being designated for the transfer of the child or children.
  • Reductions or loss of custody or visitation.
  • Fees and fines.

Many states consider custodial interference to be a felony or misdemeanor crime.

Source: “What Is Custodial Interference?” Findlaw, https://blogs.findlaw.com/law_and_life/2013/08/what-is-custodial-interference.html.

Speak With One Of Our Child Custody Attorneys In Scottsdale

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Canterbury Law Group’s child custody lawyers in Phoenix and Scottsdale will advance your case with personal attention and always have you and your children’s best interest in mind when offering legal solutions. We can help with legal guardianship, child relocation, fathers rights, grandparents rights, and more. Call today for an initial consultation!

We are experienced family law attorneys and will fight for you to obtain the best possible outcome in your situation. Our firm will rigorously represent you, so you can get on with your life. Call today for an initial consultation! 480-744-7711 or [email protected]

*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs.

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Custodial Interference By Grandparents

Custodial Interference By Grandparents

Child custody describes the legal relationships and status regarding a child or children and their legal guardians and/or parents. An individual with the custody of a child or children by default has all the responsibilities and rights of raising the child or children. This includes caring for the child or children and making choices and legal decisions for the child or children. The custody of a child or children can be granted by a court to anyone, meaning, a legal guardian can be the child or children’s, adoptive parents, biological parents, cousins, grandparents, siblings that are of legal age as well as friends, uncles and aunts. Read on to learn more.

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In most custody cases for a child or children, grandparents are often not given consideration, when it comes to visitation and securing custodial rights. Even when the grandparents have been separated from the child or children from their parents because of causes like divorce, death or the breakdown of communication between a child or children and their parent or parents.

Primary Arguments For The Rights Of Grandparents

  • The child or children can suffer from trauma when they no longer have contact with the grandparents.
  • Divorce or the incarceration of a child or children or if a child or children should die does not give the parent who has custody the right to sever the relationship the children or child has with their grandparents.
  • Grandparents offer a stable role in the life of a grandchild or grandchildren. This is especially the case for a child or children following a death or a divorce.

Primary Arguments Against The Rights Of Grandparents

  • As long as the parents are competent, the state generally has no right to interfere in the decisions of how those parents raise their child or children – meaning a parent has the right to exclude a visit from a grandparent, even when supervised.
  • There can be good reasons to exclude a grandparent or grandparents. For example, if they have a history of child abuse or interfere with the process of the conventional decisions competent parents make on behalf of their child or children. Also, some grandparents will bad mouth the parents of the child or children in front of them.
  • Grandparents and parents often have conflicts but even when parents are being irrational or unfair, interference from a court can make the home of the child or children less stable than before.

Currently, a grandparent visitation law does not exist nor is it protected in any shape or form in common law or the constitution of the United States of America. In the last 40 years, any statutes or laws on the books regarding the rights of a grandparent of a child or children are not similar from state to state. It is true all 50 states have visitation laws for a child or children as well as who may be permitted to have visitation with them after a case of child custody has been determined. These laws can consider, stepparents, parents and grandparents.

Approximately forty percent of US states only allow grandparents of the child or children to have rights of visitation and not any other person. The consequences of this are cousins; foster parents, stepparents or other relatives cannot be granted rights of visitation. However, in all of the fifty states, Grandparents are able to file a lawsuit in court in situations when they have been told they are denied the right to visit or see their grandchild or grandchildren when there is apparently no reason for them not to be allowed access to the grandchild or grandchildren.

Grandparents Rights In Arizona

In Arizona, the custodial rights of Grandparents are defined by statute A.R.S. § 25-409. Therefore, Grandparents maintain the right to be involved in the lives of their grandchild or grandchildren and if needed, to seek safe protection for them, on their behalf. Grandparents can seek legal assistance when the relationship between a grandchild or grandchildren has become broken in cases where the grandchild or grandchildren may be in risk or danger. These rights can help Grandparents retain involvement in the lives of their grandchild or grandchildren as well as protect their own rights as Grandparents. Some examples of where legal advice may be required include:

  • Parents refuse Grandparents involvement or even access to their grandchild or grandchildren.
  • Adoption, permanent custody or guardianship of a grandchild or grandchildren.
  • In cases of parental abuse of a grandchild or grandchildren.

Furthermore, Grandparents are realizing they have rights and can exercise them, examples include:

  • The filing of court petitions with the purpose of requesting continued visitation and access to their grandchild or grandchildren.
  • The filing of child custody petitions with the purpose of care of a grandchild or grandchildren.
  • The filing adoption petitions with the purpose of care for a grandchild or grandchildren.

Grandparents often seek legal advice on their visitation rights regarding a grandchild or grandchildren. There are legal requirements that must be gone through and met including the fact Grandparents must provide evidence their contact with a grandchild or grandchildren is in the child’s best interests. Some factors that are taken into consideration include:

  • The historical bond the Grandparent has with the grandchild or grandchildren.
  • A parental divorce of at least a minimum of three months.
  • A parental absence of at least a minimum of three months.
  • When a child or children are born out of wedlock.

Custodial requests by Grandparents are considerably more complex as a vital key to success will be providing convincing evidence the parents are unfit.  Grandparents seeking such relief will very likely need competent legal assistance to advance their case.

Source: Phoenixdivorceattorney. “Grandparent’s Rights in Arizona (Ultimate Guide for 2019).” Cantor Law Group, https://cantorlawgroup.com/grandparents-rights-in-arizona.

Speak With One Of Our Child Custody Attorneys In Scottsdale

(480) 744-7711
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Canterbury Law Group’s child custody lawyers in Phoenix and Scottsdale will advance your case with personal attention and always have you and your children’s best interest in mind when offering legal solutions. We can help with legal guardianship, child relocation, fathers rights, grandparents rights, and more. Call today for an initial consultation!

We are experienced family law attorneys and will fight for you to obtain the best possible outcome in your situation. Our firm will rigorously represent you, so you can get on with your life. Call today for an initial consultation! 480-744-7711 or [email protected]

*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs.

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Non-Custodial Parent Moving Out Of State Arizona

Non-Custodial Parent Moving Out Of State Arizona

When deciding if a parent will be allowed to relocate with a child or children, courts in Arizona conduct an investigation whether the relocation is likely to damage the relationship the child or children has with the parent who is not relocating. Following a divorce, it is not at all unknown for one parent desiring to relocate to another city or indeed, another state. It may be for a new spouse, a new career or just a fresh start in a new place. Regardless of the reason, it has a substantial effect on issues of custody. Following the move, if the parents are unable to come to an agreement regarding custody of the child or children, a judge will make the final and legally binding decision. The judge will consider many factors when assessing the most preferred custodial situation for the child or children. Therefore, as relocation custody can be a complex issue, it is vital to understand circumstances and situations that may impact your case.

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Overview of Arizona Custody Laws

The center point of any custody dispute is what is in the best interests of the child or children. Let’s look at some of the factors court consider to be of paramount significance when deciding on the visitation and custody arrangements that will satisfy the physical and emotional needs of the child or children:

  • The physical health and mental health of each parent.
  • The relationship the child or children has with their parents.
  • The ability of each parent to provide a stable environment for their child or children.
  • If any of the parents have a history of child abuse or domestic violence.
  • The ability of the child or children to adjust to a new community and home.

The judge will then make a decision as to whether to award sole or joint physical custody as well as sole and joint legal custody of the child or children having undertaken a consideration of factors relating to the health and wellbeing of the child or children. It is worth remembering a parent with sole custody of the child or children may have more leeway when it comes to the relocation of the child or children.

Relocation Rules For Arizona Parents

A relocation is not a simple move to the other side of town. When parents share legal or joint custody, the parent who is relocating is obliged to give advance notice of at least 45 days regarding an intended move out of state or an in-state move in excess of 100 miles. The parent who is not moving may then make a petition to the court preventing the relocation. When a judge refuses the relocation request, the other parent may still move there, but will be unable to take the child or children with them to live.

How Judges Decide Relocation Cases

Primarily, the judge examines the negative consequences a potential move may have on the wellbeing of a child or children. Evidence will be submitted by each side and the judge will determine whether to allow the relocation and how custody arrangements will be adjusted. At the hearing, a judge may hear testimony from the individual parents, relatives, teachers, or friends. In particular the judge is looking at the following aspects:

  • The reason for the move.
  • Is the purpose of the move to interfere with the visitation of the other parent?
  • Will the quality of life and wellbeing of the child or children be impacted in a negative way?
  • The relationships the child or children have with both parents, looking at the past, the present day and the future potential of these relationships.
  • What are the possible effects of less visitation with one parent?
  • The relationship a child or children has with their siblings.
  • The adjustment to home and community the child or children will have to undertake.
  • If they are of mature enough years, the preferences of the child or children.
  • Any other circumstances the court deems to consider as important.

The burden of proof lies with the parent making the move to show it is in the best interests of the child or children to move with them. Courts understand the needs of a parent to move, travel and follow a career but the best interests of the child or children and the right of the other parent to maintain meaningful relationships with their child or children has to be balanced up against this.

Source: Otterstrom, Kristina. “Child Custody and Relocation Laws in Arizona.” Www.divorcenet.com, Nolo, 31 Mar. 2017, https://www.divorcenet.com/resources/child-custody-and-relocation-laws-arizona.html.

Speak With One Of Our Child Custody Attorneys In Scottsdale

(480) 744-7711
INITIAL CONSULTATION

Canterbury Law Group’s child custody lawyers in Phoenix and Scottsdale will advance your case with personal attention and always have you and your children’s best interest in mind when offering legal solutions. We can help with legal guardianship, child relocation, fathers rights, grandparents rights, and more. Call today for an initial consultation!

We are experienced family law attorneys and will fight for you to obtain the best possible outcome in your situation. Our firm will rigorously represent you, so you can get on with your life. Call today for an initial consultation! 480-744-7711 or [email protected]

*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs.

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Custodial Interference In Arizona

Custodial Interference In Arizona

ARS 13-1302 is the Arizona statute governing custodial interference. An individual can face custodial interference charges when they knowingly act in a manner that contradicts an existing parenting plan or when they act in a way defying the legal rights of a parent. Custodial interference takes place when a parent makes a decision to purposefully hamper the custody rights of the other parent. Sadly, this is a frequently a contentious issue in cases of shared custody and can even result in charges of a criminal nature being filed because once they are established, custody orders are enforceable, more than that, they are also binding from a legal standpoint.

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When Can You Claim Custodial Interference?

Court orders have to be in place because if rights of legal decision making and parenting time are yet to be adjudicated by the court, there are no outstanding orders to be broken and there are no meaningful legal actions you can undertake until the courts sign off on the orders.

Examples Of Custodial Interference Include:

  • When parenting time has been scheduled, refusing to bring the child or children.
  • When the other parent has company making a visitation to the child or children without at first obtaining permission to do so.
  • Not returning the child or children on schedule.
  • Purposefully limiting the contact, the child or children have with the other parent.
  • Using enticements on the child or children to isolate the parent holding custody.
  • Taking the child or children before court orders are in place.
  • Taking the child or children when it is not parenting time according to the schedule already in place.

These are common examples but as each situation is unique you should talk to a family law attorney and they can make a determination as to whether your rights have been violated.

When your child or children have been born out of wedlock, the law states the custodial rights go to the mother until brand new court orders becomes effective. It is vitally important you do not take any actions against the child or children or the mother. This law will be enforced and can result in criminal proceedings.

When The Other Parent Interferes With Custody

Custody agreements are often contentious but when you have a court order already in place, you are within your rights to call law enforcement when the other parent refuses to stick to the agreed parenting plan. Your actions should also be reported to the courts. Minor examples of interference will likely be met with a caution from law enforcement as well as the enforcement of the agreed, court order, plan of parenting. In cases when a parent continues to interfere in this way, the police will now have written documentation of the behavior and if needed can make an arrest. In situations when the custodial interference has become very extreme, the courts have the power to make the following changes to the established parenting plan:

  • Transfers at a preset location that is neutral (sometimes a police station.)
  • Visits that have to be supervised by a third party.
  • Loss or restriction of custody and rights of visitation.
  • Penalties and fines.
  • Criminal repercussions.

Custodial Interference Penalties

As custody is an agreement that is court ordered, when this agreement is not adhered too, it is enforceable by law. The court system has the best interests of children uppermost in their thoughts. As per ARS 13-1302, custodial interference can be penalized by:

  • Class Four Felony: Interference by a non-parent.
  • Class Four or Class Six Felony: When a child or children is taken outside of state boundaries depending on the parenting agreement and the circumstances.
  • Class One Misdemeanor: When the child or children are returned within a forty-eight hour timeframe and they are unharmed.

As you can see, the penalties are serious. That said, it is usually only in the most serious situations where criminal charges are filed. More than likely, the initial penalty will result in a loss of current parenting rights. Always remember, any action by the parent that is contrary to the interpreted best interests of the child or children will be taken very seriously indeed.

Custodial Interference Law Exemptions

In some situations, the court allows a parent non-adherence to the parenting plan if the following applies:

  • A parent is protecting the child or children from harm.
  • Disruptions to the parenting plan that have been previously agreed upon.
  • Events the parents do not have control over.

There is no question it is frustrating to deal with custodial interference. However, the courts will be on your side and will protect your rights. The courts just will now permit a parent to continually transgress a parenting agreement that has been court ordered. The wellbeing of your child or children will be of primary concern and your own concerns will be taken seriously.

Source: “Custodial Interference in Arizona: Laws for a Disruptive Divorced Parent.” Mesa Divorce Lawyers & Family Law Attorneys, 30 May 2019, https://www.jacksonwhitelaw.com/arizona-family-law/custodial-interference-arizona/.

Speak With One Of Our Child Custody Attorneys In Scottsdale

(480) 744-7711
INITIAL CONSULTATION

Canterbury Law Group’s child custody lawyers in Phoenix and Scottsdale will advance your case with personal attention and always have you and your children’s best interest in mind when offering legal solutions. We can help with legal guardianship, child relocation, fathers rights, grandparents rights, and more. Call today for an initial consultation!

We are experienced family law attorneys and will fight for you to obtain the best possible outcome in your situation. Our firm will rigorously represent you, so you can get on with your life. Call today for an initial consultation! 480-744-7711 or [email protected]

*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs.

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Child Abandonment

Child Abandonment

Child abandonment can be defined as when a person in charge of a child or children or a guardian or parent in charge of a child or children either deserts the child or children without consideration for the safety, welfare or physical health of the child or children ,or has the intention of abandoning the child or children and in certain circumstances it may also be defined as failing to provide the appropriate and needed care for a child or children who live with them. As well as physical abandonment, child abandonment can situations include what is known as emotional abandonment where a parent offers little to no emotional support and/or physical contact over prolonged periods of time. Sadly, children who face these issues often become adults with issues such as emotional dependency, helplessness and very low-self-esteem as well as a myriad of other issues.

Someone who is charged with deserting a child or children may face severe criminal penalties.

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What Is Childhood Abandonment?

Childhood abandonment is wide category and can describe many behaviors and actions. Some examples include:

  • Only minimal efforts are made to communicate and support a child or children.
  • Leaving an infant child or children in dumpsters, trash cans, on the side of the road or doorsteps.
  • Leaving a child or children with another party without providing provisions for the support of the child or children and with no meaningful conversation with the child or children for in excess of three months.
  • Not participating in an appropriate program reuniting the parent or guardian with a child or children.
  • Not having regular visits for 6 months or longer with a child or children.
  • Unwilling to be the provider of care, supervision or support for the child.
  • Absence from the home for a such a time that it poses a risk of harm to the child or children.

Child Abandonment Laws

Laws differ depending on the state you and the child or children reside in. some states have specific laws regarding child abandonment, whereas others consider it under already established child abuse laws. Most states consider the abandonment of a child or children as a felony. This includes when a guardian or parent physically abandons a child or children when they have the intention of the relinquishment of all their responsibilities and rights towards said child or children. On the other hand, some states classify this as a misdemeanor (usually invoking less harsh penalties) considering acts of abandonment that are not physical in nature. In both sets of circumstances, child abandonment is frequently defined as:

  • Leaves a child or children typically beneath 13 years of age without the supervision of a responsible person (normally thought to be over 14 years of age.)
  • Failure to keep contact with the child or children and not providing reasonable levels of support for specified time periods.

Speaking from a standpoint of criminality, the definition of child desertion is the physical abandonment of a child or children but in some states, it can include what is termed emotional abandonment and failing to provide needed, food, shelter, clothing and medical care for their child or children.

Mandated Reporting Laws

As some states qualify the abandonment of a child or children as a form of child abuse, certain people in the realm of the child or children may have a legal obligation to report suspected or known situations to the appropriate authorities. Regulations and rules change depending on the state you are in so you will need to check to see if you fit the criteria of being what is called a “mandatory reporter.”

Safe Haven Legal Exceptions

Safe Haven laws in most states have exceptions to child abandonment laws. These Safe Haven laws allow mothers to abandon their infants who are newborn in what has been established as a safe place, such as fire stations, houses and churches without them having to fear being charged with the abandonment of a child or children.

Leaving A Child Alone at Home

Sometimes it may be unavoidable to leave a child or children at home without supervision. In general, states offer guidance to help parents avoid charges of child abandonment, Some states have statutes that will weigh a number of factors when deciding to pursue a charge of child abandonment such as the length of time the child or children were left alone, economic hardship or illness of the guardian or parent responsible for the child or children and the age of the child or children.

Punishment and Penalties for Child Abandonment

Depending on the state where they reside, an individual who is facing charges of child abandonment may be having to consider wide ranging punishments and penalties as well as multiple sentencing options, largely dependent on whether the state considers the abandonment of a child or children as a misdemeanor or crime. It is worth knowing a court can impose not only the termination of parental rights and jail time but also qualify supervised access to the child or children in the future and financial penalties in the form of fines. There is also a possibility an individual will have to face charges of reckless abandonment that has a far harsher penalty should a child or children die for a reason linked to their desertion.

Loss of Parental Rights

Most states maintain a parent is deemed to have abandoned a child or children following a period of two years when they have limited their financial support and contact. This abandonment can result in a parent losing their rights to the child or children. Nonetheless, a parent is not in a position where they can elect or make a choice regarding the forfeiture of these responsibilities and rights. Indeed, even in situations where there is little to no doubt that a child or children have been willfully abandoned, it is the viewpoint of most states they will not take the legal steps to terminate the rights of a parent except in circumstances where there is another figure willing to take on the role of a parent and who is in a position to formally adopt the child or children.

Source: “My Wife Cheated On Me and I Want a Divorce.” Maples Family Law, 17 Jan. 2019, https://www.maplesfamilylaw.com/divorce/my-wife-cheated-on-me-and-i-want-a-divorce

Need A Family Lawyer In Scottsdale?

(480) 744-7711
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Our experienced family law attorneys will work with you to obtain the best possible outcome in your situation.  As proven trial lawyers in family court, you can trust the firm to represent you fully so you can move on with your life and your children. Call today for your initial consultation. Our family lawyers can help with divorce litigation, collaborative divorce, divorce mediation, child custody, legal guardianship, paternity, prenuptial agreements, and more.

*This information is not intended to be used as legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs. 480-744-7711 or [email protected]

Child Custody, Custody Terms, Custody Tips, Father's Rights
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Termination of Parental Rights

Termination of Parental Rights

Terminating parental rights is a serious subject and should be very carefully considered before any actions are taken. Read on to learn more about the termination of parental rights.

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What Does Termination of Parental Rights Mean?

When the rights of a parent are terminated it means the rights that person had as a parent of their child or children have been taken away so that person no longer remains the legal parent of the child. This has a number of implications:

  • There is no longer a parent-child relationship.
  • The parent usually has forgone the right to speak with or visit with the child or children.
  • The parent no longer has an obligation to pay child support.
  • The parent no longer gets to raise the child or children.
  • The parent is removed from the birth certificate of the child or children.
  • The child or children can be adopted by another without the permission of the parent.

There is a reason the nickname for the termination of a parents right is referred to as the civil death penalty – such matters are taken with a great deal of levity by judges, who do not usually terminate the rights of a parent unless there is a very good reason to do so. The following information is in reference to private terminations of parent’s rights among family members only.

Who Is Allowed to Terminate A Parent’s Rights?

A petition to terminate the rights of a parent can be filed by a guardian, parent or family member. When the petitioner of the child is in receipt of public assistance such as SNAP or TANF it is not very likely the parent’s rights will be terminated by a judge. In those circumstances, the child support office has to mandatorily notified regarding a termination if the petitioner is in receipt of public assistance. The Department of Family Services, known as the DFS may request a judge to terminate the rights of a parent in instances when CPS has been involved with a family. Normally, this occurs when the DFS has been involved with the family for in excess of a year and has made numerous attempts to address the outstanding family problems. If the issues are very serious and/or the parent has failed to make progress, the District Attorney may be asked by the DFS to file a parental rights termination case.

Can I Opt to Give Up My Parental Rights?

In most cases the answer will be no. Judges, more often than not, have the view a child or children need two parents so that sufficient financial and emotional support is provided. Parental rights cannot be given up in order to avoid addressing poor behavior in a child or children and neither can you unilaterally relinquish your parental rights. In normal circumstances, you will usually have to attend a court hearing in person to explain your situation and unique goals to the judge.  Every case is different and no outcome can be guaranteed by any lawyer.

Reasons for Termination of Parental Rights

  • Only a very minimal effort has been made to support the child or children by the parent – this includes taking care of the child or children and communicating with the child or children.
  • The child or children would face a serious risk of mental, emotional or physical injury being in the company of the parent.
  • The parent is unfit in that they refuse or are incapable of providing the child or children the proper guidance, support or care.
  • When the child or children were conceived following a sexual assault. When the parent has been convicted for such a crime, their parenting rights can be legally terminated.
  • The parent has been neglectful meaning the child or children have not been correctly taken care of, this includes shelter, medical care, providing food, education and any other special need the child or children may require.
  • When CPS has taken a child or children from the home, the parent only has a limited window of time to address and correct the reasons for the removal of the child or children. If in a reasonable time, the parent does not correct those issues, the state can and often will petition to terminate parental rights.
  • When the parent displays behaviors related to abandonment indicating they desire to give up all their rights regarding the child or children. In these cases, it usually means a parent has not contacted the child or children for a time in excess of 6 months without good reason for doing so.

Regardless of any parent’s preference, the assigned judge is always going to decide on what they consider is going to be in the best interests of the child or children. Clear and convincing evidence must be produced by the party requesting the termination; this is one of the highest burdens of proof imposed by the law.

Where Do I File for Termination Of Parental Rights?

Termination of parental rights and be filed at the Juvenile or Family Superior Court in the county where the child or children resides. You may also file in the county where one of the parents makes their home. However, when the child or children are Native American, these matters are usually handled by the independent tribal court.

I Haven’t Heard From The Other Parent In Years. Is There A Fast Way To Terminate Their Rights?

Sadly, in these circumstances, it may take longer if the other parent cannot be located. The other party will have to be personally served with papers, giving them the opportunity to attend court and defend their custodial rights, should they choose to do so. When you are not aware of the location of the other parent, the judge has an expectation you will do everything in your power to locate them by speaking with family, friends, their employer, email and online searches, etc. A judge may allow you to post a notice in a newspaper should the previously named searches do not reveal the parent’s location.

How Do I Terminate Parental Rights In Arizona?

In Arizona, at least one of the following statutory grounds must be asserted and proven with clear and convincing evidence:

  • Within 30 days after being served with a Notice of Adoption, the presumed father failed to file a claim of paternity.
  • The parents have agreed to an adoption of their child or children or have relinquished the child or children to a licensed adoption agency.
  • Serious Neglect or abuse of the child or children.
  • Abandonment
  • A chronic substance abuse history from the parent which cannot be remedied or treated
  • When one parent faces felony incarceration for a considerable period of time, or life sentence.

The statutes containing the comprehensive list a court may rely on when terminating parental rights can be discovered here.

Do I Need A Lawyer for Termination Of Parental Rights In Arizona?

The termination of parental rights is a very serious matter and you should ideally engage a lawyer to assist in navigating difficult to understand laws and procedures that are mandatory in this process. In situations where DFS has filed a case seeking to terminate your custodial rights, an attorney will usually be appointed to represent your situation at no cost. However, you sometimes get what you pay for.  In circumstances where the other parent has decided to file a case against you, you should seriously think about getting a qualified and experienced attorney to help defend your rights.

Sources:

Martin, Kasio. “Family Law Self-Help Center – Overview of Termination of Parental Rights.” Family Law Self-Help Center – Overview of Termination of Parental Rights, https://www.familylawselfhelpcenter.org/self-help/adoption-termination-of-parental-rights/overview-of-termination-of-parental-rights.
“FAQ about Termination of Parental Rights in Arizona -.” Internet Marketing for Attorneys – Big Mouth Marketing, 3 Jan. 2018, https://www.bigmouthmarketing.co/legal-resources/faq-termination-parental-rights-arizona/.

Need A Family Lawyer In Scottsdale?

(480) 744-7711
INITIAL CONSULTATION

Our experienced family law attorneys will work with you to obtain the best possible outcome in your situation.  As proven trial lawyers in family court, you can trust the firm to represent you fully so you can move on with your life and your children. Call today for your initial consultation. Our family lawyers can help with divorce litigation, collaborative divorce, divorce mediation, child custody, legal guardianship, paternity, prenuptial agreements, and more.

*This information is not intended to be used as legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs. 480-744-7711 or [email protected]

Child Custody, Custody Terms, Custody Tips, Father's Rights
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