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Custodial Parents & Noncustodial Parents Rights

One parent is designated as the custodial parent and the other as the noncustodial parent, based on the custodial rights granted to each in the final custody order. These titles have an impact on each parent’s rights and obligations, including who is responsible for paying and receiving child support, among other things.

There are states where terms with the same meaning are used differently. Ohio, for instance, employs the terms “residential parent” and “nonresidential parent.”

A custodial parent: what is it?

The principal caregiver for the child is the custodial parent. They frequently get sole custody, which grants them complete control over all decisions pertaining to the child (sole legal custody) and most or all of the parenting time (sole physical custody).

The custodial parent may be named in a joint or sole custody agreement that the parents come to. Should that not be feasible, the judge determines the appropriate party based on:

The child’s best interests

Who has more time to devote to the child? Who was the child’s primary caregiver when the custody case began? In certain states, the child’s wishes
The opportunity to spend a lot of one-on-one time with your child is one advantage of having custodial custody. There’s also the possibility that you won’t have to pay child support.

But you bear the majority of the parental load, particularly if you’re a single parent. All or most of your child’s growing pains and frustrations must be addressed as you are responsible for their daily care. In addition, you’ll have extra responsibilities that the other parent might be able to avoid, like driving the child to and from school.

Should you and your former partner get along well enough, you may be able to co-parent and divide these duties equally between the two of you.

A noncustodial parent is what?

In most cases, the noncustodial parent has less time with the child and is the one who pays child support, though they may still be eligible for assistance if the custodial parent earns a substantially higher income.

You may remain the noncustodial parent even if you share joint legal and physical custody. Perhaps the court decides you need to pay child support, or perhaps the other parent resides in a better school district.

Even though you might not see your child as much, you play an equally important role in their upbringing as the custodial parent does; children gain the most from having both parents involved.

Rights of noncustodial parents

Noncustodial parents are entitled to visitation privileges and decision-making power, unless the court rules otherwise. The court may mandate supervised visitation if there are worries about the child being with the parent alone.

The custodial parent’s refusal to permit visits does not absolve you of your child support obligations. If you want to make sure the order is enforced, you should bring the matter before a family court.

It is your right to be informed if the parent with custodial rights plans to move. The majority of states have deadlines for the custodial parent to notify the other parent when they are moving. The noncustodial parent now has time to object. If the distance is great enough to interfere with the visitation schedule, the custody order might need to be modified.

Both parents have the right to know where their child is during visits, if specified by the court order.

Working Together

For the purpose of raising your child, you and your ex-partner remain a team, despite your separation. Among the matters you ought to work together on are:

Important decisions pertaining to children, such as the child’s schooling
Significant costs for the child (such as medical procedures)

Reliability

Getting the youngster to and from appointments

Before going to court, think about attempting an alternative dispute resolution process if you’re having problems reaching a consensus on these issues. It might be more difficult to resolve conflicts amicably in the future if litigation is brought about right away.

Divorce can be tolling on all involved so be sure to guard your kids and preserve their future. For more information on divorce and child custody, contact the Scottsdale divorce lawyers at Canterbury Law Group. We are here to protect you and your children: (480) 744-7711.

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Child Custody Mediation: How It Works

Learn the basics of this dispute resolution tool for divorcing spouses and get pointers on approaching your own child custody mediation sessions.

Divorce is an inherently painful process that can be all the more challenging when children are involved. Fighting over child custody issues in court can intensify the pain for all those involved—not to mention the expense.

Fortunately, disagreeing couples can get help working toward solutions for their family somewhere other than court. Child custody mediation exists precisely so that parents who just can’t seem to agree don’t have to take on the financial and emotional costs of court battles.

What Is Child Custody Mediation?

Mediation is a method of “alternative dispute resolution” (ADR) that has become a mainstay in the world of divorce. When it comes to child custody, mediation is designed to help divorcing or unmarried parents reach an agreement on legal and physical custody of their children without the pain and expense of a traditional court contest.

In a mediation session, spouses meet with a trained mediator, usually in an informal setting (such as the mediator’s office), or sometimes online. Think of the mediator as a guide, navigating the couple through the maze of marital issues they disagree on. (Sometimes the spouses work with a mediator and otherwise handle the case themselves; other times, they each have an attorney who might help them prepare for mediation, provide coaching for the negotiation process, and prepare or review any resulting agreement.)

Unlike a judge or arbitrator, the mediator doesn’t make decisions on the disputed matters. Rather, mediators use their knowledge and skill to try to facilitate a compromise that both spouses can live with. In divorce cases, a successful mediation will normally lead to the preparation of a written settlement agreement.

Although many issues in a divorce can be contentious, child custody and parenting time are often the most emotionally charged and difficult for families to agree on.

Child Custody Overview

Child custody isn’t the all-or-nothing proposition it’s often thought to be—one parent gets the kids, the other doesn’t, end of story. It’s well established that children fare better when both parents are an integral part of their life, and that’s the goal the courts strive for in custody cases.

At its core, child custody includes two basic concepts: legal custody and physical custody. Legal custody relates to who will make the decisions regarding the important matters in a child’s life, such as education, religious upbringing, and non-emergency medical treatment. Unless one parent is unqualified for some reason, courts prefer to have parents share legal custody.

Physical custody has to do with where a child will primarily reside. To a large degree, determining physical custody depends on where each parent lives, with the aim being to provide for an arrangement that best suits the child’s needs.

In all custody matters, doing what’s in the child’s best interest is the court’s guiding principle.

Child Custody Mediation Basics

Although many issues in a divorce can be contentious, child custody and parenting time are often the most emotionally charged and difficult for families to agree on. Child custody mediation is intended to help tone down the hostility, for the sake of both the parents and their children.

Court-Ordered vs. Private Child Custody Mediation

Child custody mediation can be either ordered by a court or private and voluntary. Court-ordered mediation is often free, low cost, or priced on a sliding scale based on the parents’ incomes. But even if a judge has ordered you to participate in custody mediation, you almost always have the option of choosing private mediation instead of the mediation program offered through the court.

If you can afford it, private mediation allows you to have more say in the process, and it tends to be more successful than court-ordered mediation (in part because of the time restrictions on most court-sponsored custody mediation). Because of that, private mediation might actually save you money because of the court costs and lawyers’ fees that come when there’s no agreement.

Child custody mediation is also typically more cost effective than going to court, because you’re paying one mediator to help you come to an agreement, rather than both of you paying hourly fees to separate attorneys. Also, you have a say in when the sessions will take place. That’s a luxury that is practically nonexistent in the court system.

Most states (and many counties) require courts to order parents to participate in mediation in any case that involves a custody dispute. So even when couples who can’t agree haven’t opted to pursue mediation before filing for divorce, they’ll usually have to attend mediation at some point. In light of this, it’s important to learn how to approach mediation.

How to Prepare for Child Custody Mediation

First and foremost, remember that custody in general, and mediation in particular, isn’t primarily about the parents. It’s about the children. You have to make a commitment to do whatever is best for them, and that starts with being prepared.

Here are some quick tips on getting ready for a mediation session:

Try to get plenty of sleep the night before. Mediation can be stressful, so be sure to take care of yourself. It’s much easier to stay calm and think clearly when you’re rested.

  • Resolve to keep an open mind. Remember, it’s not about getting everything you want. Your spouse may have a different perspective on what’s best for the children. Try to understand where your ex is coming from instead of immediately digging in. The mediator may also have suggestions for custody and parenting time that you haven’t thought of.
  • Sketch something out. Write out a proposal of what you believe would be a fair custody and parenting time arrangement. Sketching out a plan can help organize your thoughts and provide a starting point for discussion. Include a checklist so you don’t lose track of issues that are important to you. Remember to include things such as:
    • how to handle transitions, meaning picking up and dropping off the children when it’s time for them to be with the other parent
    • how to share the cost involved in travel if that’s a factor (such as when the parents live far away from each other)
    • how to divide holidays throughout the year (for example, whether the schedule will be the same each year or will alternate)
    • vacation sharing, for school breaks and summer
    • how to deal with minor changes to the agreed-upon schedules, like when a child or parent is sick
    • the best way for parents to communicate with each other (phone and/or email, for example), and
    • anything you feel could be a potential problem, such as a parent having substance abuse issues that need to be addressed.

Keep in mind that software programs and smartphone apps can help parents coordinate all aspects of custody and parenting time, including communications.

When Custody Mediation Might Not Be Appropriate

Custody mediation is generally not appropriate in cases involving ongoing domestic violence or emotional abuse. In many states that require mediation for custody disputes, you may get out of this requirement if you’re experiencing abuse or there’s a protective order in place. Other states, like California, won’t excuse you from participating in custody mediation, but you may request special procedures to protect your safety.

As long as you have the choice to participate in mediation (or not), you should be aware that custody mediation might not be the best option in some other circumstances, such as when

  • there’s a history of abuse in your relationship, or the other parent bullies or dominates you
  • you have such a high level of conflict in your relationship that cooperation and effective communication is basically impossible, or
  • the other parent has an untreated substance abuse disorder.

5 Tips for Your Child Custody Mediation Sessions

Even if both spouses come with the best intentions, mediation can hit rough patches. When that happens it’s important to take a breath and refocus your energy on what’s best for the children.

Here are some more tips to achieve a successful mediation:

  1. Don’t bring up marital issues unrelated to the children. Remember that this isn’t a general divorce mediation, so don’t muddy the waters by bringing up anything not specifically related to custody and parenting time. Reciting a laundry list of things you don’t like about the other parent is a prime example of what not to say in child custody mediation.
  2. Be thoughtful with your language. When you reference your children, talk about “our” kids, not “my” kids. It’s more inclusive and less confrontational. And try to couch your remarks in terms of what you as parents can jointly do to make the situation as positive and painless for your children as possible.
  3. Don’t let your emotions get the best of you. Expect that—despite everyone’s best efforts—there will be times when your discussion can become heated. Don’t use that as an excuse to unload on the other parent, which will only undo progress that’s been made up to that point. Mediators are adept at calming the waters, but if you feel your emotions are getting away from you, ask to take a short break.
  4. Don’t subject yourself to abuse. If you choose to mediate your custody dispute despite a history of physical or emotional abuse, you might consider online mediation, mediation with separate sessions for you and the other parent, or both (meaning that you’ll meet virtually with the mediator in separate “break-out” sessions). So-called “shuttle mediation” usually costs more—because it takes more of the mediator’s time—but it can help level the playing field by offsetting the imbalance of power that frequently exists in abusive relationships. A successful outcome is worth the additional cost, which is still likely to be considerably less than heading to court. Virtual or separate mediation sessions are also useful if the degree of hostility between you and the other parent is so high that you can’t be in the same room.
  5. Remember, you always have options. In the event mediation doesn’t work, you can still turn to the courts. Even in that case, your mediation sessions will probably have highlighted the issues you can’t agree on, which will show you what you need to focus on going forward.

Finding a Qualified Mediator

Mediation has become such a popular method of settling legal issues that there’s no shortage of qualified mediators. Your state court’s administration office may have a list of approved mediators. There are also mediation organizations that offer lists of mediators along with their training and experience.

When researching, be sure to pay particular attention to each mediator’s qualifications. You want one who’s taken mediation courses specifically geared to divorce cases, including custody and parenting time. Also, be aware that a child custody mediator doesn’t necessarily have to be a lawyer—many trained child custody mediators are licensed psychologists, marriage and family therapists, or social workers who have experience in child custody issues in their state.

Of course, firsthand knowledge and word-of-mouth referrals are always helpful. Recommendations from friends or family members who’ve been through custody mediation are often the best referrals you can find.

Source: https://www.divorcenet.com/resources/understanding-child-custody-mediation.html

Divorce can be tolling on all involved so be sure to guard your kids and preserve their future. For more information on divorce and child custody, contact the Scottsdale divorce lawyers at Canterbury Law Group. We are here to protect you and your children: (480) 744-7711.

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When Is a Bankruptcy Claim Contingent, Unliquidated, or Disputed?

The bankruptcy procedure requires you to categorize your debts or “claims” as contingent, unliquidated, or disputed. You’ll need to be familiar with these phrases in order to properly identify and categorize your debts on the various bankruptcy forms.

In a bankruptcy, You Must List All Debts or “Claims”

You describe your financial condition to the court, trustee, and creditors on your bankruptcy filings. Your financial information will be disclosed, along with your monthly budget, real estate and personal property holdings, debts or “claims” you owe, income, and recent real estate transactions.

When listing claims in your documentation, you must include the name, address, and amount owed to each creditor. Find out how to fill out bankruptcy forms.

Not Every Bankruptcy Debt Is Conditional, Unliquidated, or Contestable

Because the label is only necessary if it is unclear whether you owe the loan, the majority of debts won’t require a contingent, unliquidated, or contested label. There will almost always be no doubt that you owe the money. You won’t need to describe the claim as contingent, unliquidated, or contested if you don’t have a defense to use to avoid paying the debt.

Consider the scenario when you have a car loan that is past due. The claim would then be for the remaining sum. Other common responsibilities, like credit card debt, would follow the same rules.

Types of Creditor Claims in Bankruptcy: Secured, Unsecured & Priority explains additional claim classifications that you should be aware of.

When a Contingent, Unliquidated, or Disputed Debt Will Arise

Sometimes it’s difficult to determine how much money you owe a creditor. Each of the labels—contingent, unliquidated, and disputed—identifies a specific problem that must be fixed before the claim may be paid.

Maybe how much you owe will rely on what someone else does, or maybe it won’t. Alternatively, you and the creditor may differ on the amount you owe.

If there is an issue, you should note it when filing the claim on your bankruptcy papers under the relevant heading of contingent, unliquidated, or contested claim (the form provides checkboxes for these designations).

A contingent claim is what?

Payment of the claim is subject to a future occurrence that may or may not take place. For example, if you cosigned a secured loan (like a mortgage or auto loan), you aren’t liable for paying it until the other cosigner defaults. Your responsibility as a cosigner depends on the default.

An Unliquidated Debt Is What?

There are times when you owe money but are unsure of how much. Although the precise amount of the debt hasn’t been established, it might exist. Let’s take the example of a lawsuit you filed against someone for injuries you had in a car accident. Your attorney has accepted the case on a contingency basis; if you win, the attorney will receive a third of the recovery; if you lose, the attorney will receive nothing. The debt owed to the attorney is unpaid. The amount of the attorney’s fee won’t be known until the case is settled or won at trial.

A Disputed Debt Is What?

You will tick this box if there is a discrepancy between the amount you owe and what you owe, if anything at all. Consider a scenario in which the IRS has an involuntary tax lien on your property and claims that you owe them $10,000. On the other hand, you think you just owe $500. You should state that the claim is disputed and include the total amount of the lien rather than the amount you believe you owe (you can clarify how much you believe you owe in the notes).

In Bankruptcy, You Must List All Claims

For a variety of reasons, it’s typical for someone to desire to exclude a claim from the bankruptcy petition. You cannot succeed. All claims, including those you believe you owe and those that others think you owe, must be listed.

It’s ideal for you to do that. Even if it would typically be considered a dischargeable debt, if you don’t list a claim, it might not be eliminated or “discharged” in your situation.

Claims Payment in Bankruptcy

Following the payment of creditors, the following will take place:

Creditors will be notified by the bankruptcy trustee assigned to the case that it is a “asset case.”
In order to get a portion of the available funds, a creditor must submit a proof of claim form by a specific deadline.
The claims will be examined by the trustee, who will then pay them in accordance with bankruptcy law’s priority payment system.
But keep in mind that every circumstance is different. Consult with an experienced bankruptcy lawyer if you are unclear about what will happen to the claims in your bankruptcy case.

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Differences Between Legal and Physical Child Custody

When you’re splitting up with your child’s other parent, you’ll need to address the issue of child custody, either as part of a divorce or in a separate custody proceeding. Whether you’re preparing for a custody case or hope to reach a parenting agreement, you should become familiar the basic principles of child custody.

The first thing to understand is that there are two elements to child custody: legal custody and physical custody. It’s not unusual for legal and physical custody to be set up differently. For example, parents might have joint legal custody but not joint physical custody. But with both legal and physical custody, judges base their decisions primarily on what would be in the best interests of the child, not necessarily what the parents want.

What Does Legal Custody Mean?

Legal custody refers to parents’ authority to make the important decisions about their children’s lives, such as:

  • medical and other health care, including the choice of doctors and whether the kids will get vaccinations or go to therapy
  • schooling and other educational resources like tutoring and special education
  • religious activities and instruction, and
  • whether they’ll take part in extracurricular activities like team sports, school band, or music lessons.

A few states use different terms for legal custody, such as decision-making or parental responsibility (in Colorado and Florida) or managing conservatorship (in Texas).

Joint or Shared Legal Custody

Most married parents make important decisions about their children together. And when they divorce or separate, judges usually prefer to keep this arrangement—generally called joint or shared legal custody. That preference is based on the longstanding recognition by courts that fit parents have a fundamental right to decide how their children are raised.

But even when both parents have the legal decision-making authority for their children, one of them—typically the primary residential (or custodial) parent—will often make routine decisions like scheduling doctor’s appointments or authorizing emergency medical treatment. Just as when they are still living together, it’s up to divorced parents to work out the practicalities of how to handle these decisions.

The best way to do that is to put it in writing ahead of time (whether in a separate custody agreement or as part of a complete divorce settlement agreement). For example, you may agree that you’ll follow the advice of your child’s pediatrician if there’s a dispute about vaccines, medication, or authorizing a medical procedure.

When Do Judges Award Sole Legal Custody?

Despite the built-in preference for giving both parents a say in how their children are raised, judges may grant sole legal custody to one parent when that would be best for the children, such as when the other parent:

  • has a history of domestic abuse (toward either a child or the other parent) or child neglect
  • has serious mental illness or a substance abuse problem that hinders the ability to make good decisions, or
  • isn’t involved in the child’s daily life.

Judges might also order sole legal custody in high-conflict cases where it’s clear that the parents won’t be able to agree.

Some judges may order joint legal custody while designating one parent as the tie-breaker in any disagreements. This isn’t that different from sole legal custody, but it does encourage both parents to be involved in the decision-making process.

Joint legal custody can sometimes turn into a constant battleground, with the parents going to back court to try to resolve disagreements. If this keeps happening—especially if one parent makes decisions about a child’s life over the other parent’s objections—the judge might modify custody by changing the existing arrangement to sole legal custody.

Physical Custody

Physical custody refers to where the children live most of the time. As with legal custody, some states have different names for physical custody, such as parenting time or time sharing.

Sole Physical Custody With Visitation

With sole physical custody, the children live with one parent while the other parent has visitation time. This traditional arrangement isn’t as common as it used to be. But it still might be the best solution for the children in certain situations, especially when:

  • the parents live far enough apart that it would be difficult for the kids to go back and forth frequently, or
  • one parent isn’t able to provide proper care for the kids because of housing instability, mental health issues, or substance abuse.

Even when one parent has sole physical custody, judges will usually try to make sure that the other parent can have frequent and continuing contact with the children—a goal that is explicit public policy in some states. For instance, noncustodial parents who live far away from the custodial parent might have the children during summer vacations and other long school breaks.

Joint or Shared Physical Custody

With shared physical custody or parenting time, children split their time between their parents. This way, they can have two engaged and involved parents, with two real homes.

Some states require judges to start out with by presuming that joint physical custody is better for the children. Then, any parent who disagrees must provide convincing evidence that shared custody wouldn’t be good for the kids.

Joint physical custody doesn’t always mean an exact 50-50 split. For instance, it often works best for the children to spend school nights with one parent (often called the primary residential parent) and weekends with the other parent. Of course, this kind of arrangement isn’t very feasible if the parents live far apart.

Shared Parenting Plans

Shared parenting plans usually involve detailed schedules, including provisions for issues like:

  • when, where, and how parents will pick up and drop off the kids
  • how the parents will communicate and deal with unforeseen changes to the schedule, and
  • where the children will spend birthdays, holidays, and other school vacations.

In most cases, parents work out their own parenting plan—either on their own or with the help of custody mediation, their lawyers, or both. In fact, many states and courts require parents to participate in mediation of any legal custody dispute. Once the parents have agreed on a plan, they’ll submit it to the court. Judges usually approve these agreements as long as they appear to be in the children’s best interests.

When Parents Can’t Agree on a Parenting Plan

If parents aren’t able to reach an agreement about physical or legal custody of their children, each of them will typically submit a proposed parenting plan to the court. A judge will then review those plans along with all the other evidence—which might include a report from a custody evaluation—before deciding on a custody arrangement that will be best for the children.

If you find yourself in this situation, you should speak with a family law attorney who can help you gather and present the kind of evidence you need to win your custody case.Source

https://www.divorcenet.com/resources/divorce/divorce-and-children/legal-and-physical-custody-children

Divorce can be tolling on all involved so be sure to guard your kids and preserve their future. For more information on divorce and child custody, contact the Scottsdale divorce lawyers at Canterbury Law Group. We are here to protect you and your children: (480) 744-7711.

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Preference for the ‘Primary Caregiver’

Physical custody of a child may be requested and granted to parents who are divorcing. In a perfect world, the parents would resolve their differences out of court. However, disputes over child custody and divorce are frequently complicated. They can be challenging for the pair to resolve independently. The duty of determining the best custody arrangement for the child may fall to the court.

When deciding how to manage child custody in a divorce, the court must take a number of considerations into account. Courts are becoming less inclined to support the child’s “primary caregiver.” Instead, they prioritize the “best interests of the child.” This norm frequently promotes an equal level of parental involvement in the child’s life. Some states, like Kentucky, have even enacted legislation that codifies the 50/50 custody arrangement.

This article provides a summary of the criteria the court considers when deciding on a child custody arrangement.

‘Child’s Best Interest’ Standard

Most governments prioritize the “best interests of the child” in custody disputes. This standard takes a holistic approach to the child in order to safeguard their general well-being. The majority of states now hold the opinion that it is best for both parents to play a significant role in their children’s lives. The court does not automatically favor one parent over the other when using this criteria. However, the court may decide that one parent will have less than 50/50 custody if that parent engages in destructive activities that injure the kid.

What is in the child’s best interests will be determined by the court after considering a number of various considerations. To determine custody and issue a custody order, the court will take into account the following factors:

  • Age of the child and the desires or preferences of the child (if they are old enough)
    Relationship of either parent to the child
    The state of mind and body of the parents
    The child’s and parents’ preferred religion
    Maintaining a stable home environment is necessary.
    Assistance and chances for interaction with either parent’s extended family
    Relationships and interactions with other family members
    Adaptation to the community and school
    Too strict punishment from parents, emotional abuse, or domestic violence
    Evidence of drug, alcohol, or sexual abuse by your parents

The family court judge may grant single custody to one parent if the court decides that shared custody is not the best option for the child. This parent will likely be given primary physical custody of the child and may be deemed by the court to be the child’s primary caregiver. Additionally, they may be granted legal possession of the child. In order to provide for the kid financially, the judge may require the noncustodial parent to pay child support.

The ‘Primary Caregiver’ Doctrine:

The “primary caregiver” notion is becoming less prevalent in court decisions. According to this idea, judges would favor the parent who took care of the children the most of the time. The following are some of the criteria used to identify the primary caregiver:

  • Grooming, dressing, and bathing
    Organizing and making meals
    Obligations for laundry and clothing purchases
    Health care policies
    Encouraging involvement in extracurricular activities
    Teaching reading, writing, and math concepts and providing homework assistance
    conversing with educators and going to open houses
    Together with the youngster, plan and partake in leisure activities.
    The court may take these things into account. But today’s courts place more weight on other considerations (including what is in the best interests of the child). View a list of state custody summaries to find out how your state handles child custody.

In fact, since contemporary families embrace shared parenting, courts all over America have shifted toward equal 50/50 parenting. More and more courts are coming to the conclusion that giving the kids time with both parents is in their best interests.

Protect Your Child’s Interests With the Assistance of an Attorney

The custody of the child is one area where there is frequently disagreement, even in amicable separations. In order to decide who gets custody, the court will consider a number of issues. The court is, however, ceasing to take the primary caregiver into consideration. The best interests of the kid are instead the focus of the court.

You can get assistance from a skilled family law attorney in your child custody dispute. They can help you by providing insightful legal counsel and taking child custody laws into consideration. If you are a noncustodial parent, they can aid in advocating for your parenting time or visitation rights. Additionally, they can aid in your representation in custody disputes before the family court.

Speak to a family law professional about your custody dispute right away. Many law firms provide free initial consultations.

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Grandparent Rights in Arizona

Grandparents form an important part of extended families. In some families, grandparents are like another set of parents to children. Most grandparents care deeply for their grandchildren. If a child’s parents or guardians are failing in their duties, the grandparents might wish to step in and help.

In Arizona, grandparents can legally seek custody of grandchildren or visitation rights under the statutes A.R.S § 25-409. A grandparent must go to family court for these rights, and these petitions are carefully reviewed by a judge. The court decision will be based on what’s legally called the “best interests of the child.” Therefore, grandparents who want legal custody, visitation rights, or seek to adopt a grandchild should consult with Family Law help in Scottsdale.

How Can Grandparents Get Visitation Rights?

If a child’s parents deny the grandparents visitation rights under any circumstance, the grandparents can file a petition in court in Arizona. The court will consider the petition if the following conditions are true:

  • The child’s parents were never married.
  • The grandparent is the parent of a deceased or missing (for at least 3 months) parent of a child.
  • The petitioning grandparent is the parent of a non-custodial parent of a child, where the child’s parents are divorced and have been for at least three months.

If the above conditions are not met, it’s unlikely the court will consider the petition. Exceptions may be granted in the case of extraordinary circumstances, such as abuse. These considerations fall under the child’s best interests category.

Eligibility of the Grandparent

Grandparents petitioning for custody are required to meet certain eligibility criteria as set by Arizona law. The requirements go as follows:

  • The child’s legal parents should be deceased, in the process of getting divorced or legally separated, or were never married
  • For the grandparent to get custody of a child, then remaining in the parent’s custody must be detrimental to the child’s well-being.
  • The grandparent must be able to be “in loco parentis” to the child, meaning that the grandparents will provide the same care and support as a parent.
  • The custody of the child should not have been decided in the previous year (exceptions are granted in cases where the child could be harmed).

If the above eligibility requirements are not met, then the petition will be dismissed.

How Does an Arizonian Court Determine the ‘Best Interests of the Child’?

Under Arizona law, a court must consider “all relevant factors” when determining the best interests of the child. In family law, there are actually five statutory factors that courts always consider when approving a petition. Here are those factors as follows:

  • The relationship the grandparent has with the child in historical terms
  • The reason that the grandparent is petitioning for visitation rights
  • Why the parents may have denied the grandparent visitation rights
  • The impact of visitation on the child’s life or activities if the court grants the grandparent visitation rights, depending on the amount of visitation the petitioner seeks
  • If a parent, or both, are deceased, the benefit grandparent’s visitation will have on other extended members of the family

When Can Grandparents Petition for Visitation Rights

Grandparents can go to the family court directly for visitation rights. If the parents are getting a divorce or are in the middle of a custody battle, then a grandparent can sometimes file the petition as part of the divorce or custody proceedings. Consult with a lawyer for more specifics on when to file.

Grandparents can also formally adopt a child, but these types of petitions are subject to a different set of laws. Your family lawyer will be able to assist you in explaining these laws.

Grandparent Rights in Arizona

Grandparents form an important part of extended families. In some families, grandparents are like another set of parents to children. Most grandparents care deeply for their grandchildren. If a child’s parents or guardians are failing in their duties, the grandparents might wish to step in and help.

In Arizona, grandparents can legally seek custody of grandchildren or visitation rights under the statutes A.R.S § 25-409. A grandparent must go to family court for these rights, and these petitions are carefully reviewed by a judge. The court decision will be based on what’s legally called the “best interests of the child.” Therefore, grandparents who want legal custody, visitation rights, or seek to adopt a grandchild should consult with Family Law help in Scottsdale.

How Can Grandparents Get Visitation Rights?

If a child’s parents deny the grandparents visitation rights under any circumstance, the grandparents can file a petition in court in Arizona. The court will consider the petition if the following conditions are true:

  • The child’s parents were never married.
  • The grandparent is the parent of a deceased or missing (for at least 3 months) parent of a child.
  • The petitioning grandparent is the parent of a non-custodial parent of a child, where the child’s parents are divorced, and have been for at least three months.

If the above conditions are not met, it’s unlikely the court will consider the petition. Exceptions may be granted in the case of extraordinary circumstances, such as abuse. These considerations fall under the child’s best interests category.

Eligibility of the Grandparent

Grandparents petitioning for custody are required to meet certain eligibility criteria as set by Arizona law. The requirements go as follows:

  • The child’s legal parents should be deceased, in the process of getting divorced or legally separated, or were never married
  • For the grandparent to get custody of a child, then remaining in the parent’s custody must be detrimental to the child’s well-being.
  • The grandparent must be able to be “in loco parentis” to the child, meaning that the grandparents will provide the same care and support as a parent.
  • The custody of the child should not have been decided in the previous year (exceptions are granted in cases where the child could be harmed).

If the above eligibility requirements are not met, then the petition will be dismissed.

How Does an Arizonian Court Determine the ‘Best Interests of the Child’?

Under Arizona law, a court must consider “all relevant factors” when determining the best interests of the child. In family law, there are actually five statutory factors that courts always consider when approving a petition. Here are those factors as follows:

  • The relationship the grandparent has with the child in historical terms
  • The reason that the grandparent is petitioning for visitation rights
  • Why the parents may have denied the grandparent visitation rights
  • The impact of visitation on the child’s life or activities if the court grants the grandparent visitation rights, depending on the amount of visitation the petitioner seeks
  • If a parent, or both, are deceased, the benefit grandparent’s visitation will have on other extended members of the family

When Can Grandparents Petition for Visitation Rights

Grandparents can go to the family court directly for visitation rights. If the parents are getting a divorce or are in the middle of a custody battle, then a grandparent can sometimes file the petition as part of the divorce or custody proceedings. Consult with a lawyer for more specifics on when to file.

Grandparents can also formally adopt a child, but these types of petitions are subject to a different set of laws. Your family lawyer will be able to assist you in explaining these laws.

All states have recognized grandparent visitation rights for decades. Grandparent rights ensure that children have access to the benefits of having grandparents in their lives. Grandparents may exercise their custody rights when the child’s parents are unable to care for their child

Grandparent Custody Requirements

Statutory provisions for child custody are usually less specific than grandparent visitation. First, courts must consider the parent-child relationship with each parent.

If either or both parents are alive, courts in most states will presume that the parents of the child should retain custody. The court will always put the best interests of the child first. Ultimately, the court prioritizes the safety and well-being of the child.

The court will consider several different factors to make this decision. For example, the court might consider the child’s wishes if the child is old enough. The court will look at the physical health and mental health of each parent. They will also consider any history of domestic violence or substance abuse.

If the court finds one is an unfit parent, they might terminate their parental rights. This typically only happens when there has been severe abuse and neglect of the child and the parent has been given ample opportunity to change the situation. They might lose legal or physical custody of the child. The court also might order the parent who does not have primary physical custody to pay child support through a court order.

Grandparents must generally prove the parent is unfit to convince the court to award custody to them. It’s generally very difficult for a grandparent to get custody of their grandchild against the parent’s wishes. Other non-parents and family members might also petition the court for custody of a child.

Grandparent Visitation Requirements

Grandparents generally have to meet certain conditions before they can be granted court-ordered visitation. In a majority of states, courts must consider the marital status of the biological parents. Then, the court will evaluate the relevant factors to determine if visitation is appropriate.

Some states consider marital status only when the parents deny visitation rights to the grandparents. In other states, marital status is a factor if the grandchild has lived with the grandparents for a specific duration.

A minority of states require that at least one parent is deceased before a court can award visitation to the parent of the deceased parent of the child. For example, the court may award a maternal grandparent in one of these states with visitation only if the mother of the child is deceased.

In every state, grandparents must prove that granting visitation to the grandchild is in the best interest of the child. Several states also require that the court consider the grandparent-child relationship. They might also consider the effect of grandparental visitation on the relationship between the parent and child. They will also consider the possibility of harm to the grandchild if visitation is not allowed.

Effect of Adoption on Grandparent Visitation Rights

State statutes vary in their treatment of cases in which a grandchild has been adopted. In several states, adoption by anyone—including a stepparent or another grandparent—terminates the visitation rights of the grandparent.

In some states, adoption by a stepparent or another grandparent does not terminate visitation rights, but adoption by anyone else terminates visitation rights. In other states, adoption does not affect the visitation rights of grandparents as long as other statutory requirements are met.

Learn More About Your Rights as a Grandparent From an Attorney

Most grandparents would give anything to spend more time with their grandchildren. But family relationships can get complicated. Most state laws recognize the rights of individuals to visit with their grandchildren.

Find out how this could impact your family by talking to an experienced family law attorney. An attorney can provide valuable legal advice about your situation. Lawyers can help with child custody cases, resolve custody disputes, and represent you in family court.

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Sole Custody

When a divorce involves children, Canterbury Law Group fights to protect their future and well-being both emotionally and financially.

Our Scottsdale divorce lawyers work diligently to ensure your children remain a priority throughout and after the divorce, and strive to remedy sensitive issues including custody arrangements and parenting plans. Our primary focus is to reduce the possible future damage divorce can have on children and relationships.

We often see parents who hope to win sole child custody and “take the kids”. However, it is important to realize that the court’s priority is the best interests of the child, which frequently mandates a ruling of joint custody. Many parents go into a child custody hearing with the intention of seeking sole custody. For some parents, this is because they believe that the other parent is “unfit” to raise their child. Any parent hoping to be awarded sole custody should realize that there is a higher burden of proof for the parent seeking sole custody. You will have to literally prove in a court of law that the other parent is an unfit parent based on substance abuse, criminal history or acts of domestic violence.

To award sole custody, the courts have to establish one parent as the “better parent,” which can be difficult to do, particularly if both parents have been involved up until this point. In addition, most judges are reluctant to prevent either parent from having a relationship with their child because the implication is that both parents, together, are best able to care for a child. As a result, any parent seeking sole custody has to prove that he or she is best able to care for a child, with or without the assistance of the other parent.

In addition, from a judge’s standpoint, parents should not be trashing one another during a child custody hearing. Instead, the parent seeking sole custody should focus on proving that he or she is the better parent without attacking his or her counterpart. When seeking sole custody, one should focus on the physical and psychological well-being of the child. Physical well-being includes your child’s routine, sleeping habits, eating schedule and activities. Judges tend to notice parents who encourage a healthy lifestyle. The factors of psychological well-being may include making sure that the child has access to liberal visitation with the other parent. Judges tend to favor parents who openly support the child’s the ongoing relationship with the other parent. Whether hoping for sole custody or joint custody, the legal team at Canterbury Law Group in Scottsdale can effectively represent you. Contact us today to schedule your initial consultation.

Child Custody & Parenting Time, Divorce & Legal Separation, Divorce Attorney, Family Law, Sole Child Custody
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Joint Custody

When parents divorce or separate, they come across new legal jargon like “joint custody.” But what does that actually mean in a legal and practical sense?

In contrast to solo custody, where one parent has sole legal custody of their kid, joint custody involves both parents sharing these rights.

Depending on which parent has the child’s legal custody, either joint custody or solo custody may apply. Parents who share custody have equal say over important life choices for their children. Parents do not share these rights in single custody cases.

Joint custody arrangements and legal custody

It is crucial to mention legal custody in any conversation about child custody agreements. When a parent has legal custody, they are able to make important choices that will effect their child’s future. Major choices are frequently made in relation to extracurricular activities, health care, extracurricular schools, and religious instruction. However, other facets of your child’s life might also be considered to be such. When trying to ascertain the areas of your child’s life over which you possess decision-making authority in a joint custody arrangement, it is crucial to verify with your attorney regarding what technically qualifies as “major.”

Parents who share custody have an equal say in such important choices. You risk being found in contempt of court if you try to stop the other parent from taking part in this decision-making. Any custody agreement is joint only if there is an equal division of the legal authority to make such significant choices.

Every state has its own laws on the matter, and joint custody can take many different forms.

Official Language for Spending Time with Children

In the majority of states, time spent with your child when you share custody of them is formally known as “timesharing,” “parenting time,” or “visitation.” While many may refer to such a situation as having “joint physical custody,” the term is not legally recognized to describe features of visitation in custody situations where joint legal responsibility for important life decisions is allocated.

One Standard Arrangement for Custody
One popular form of joint custody is one in which both parents are entitled to an equal amount of time with their child while also sharing the responsibility for all significant life decisions for that child. In these arrangements, the child will live with each parent for a certain amount of time, and the parents will work together to make choices regarding the child’s welfare and upbringing in a manner akin to when they were married (legal custody).

Example: Mother and Father agree to jointly decide on all significant matters pertaining to the welfare and upbringing of the child (legal custody) and set up a timetable where the child spends one week at a time with each parent.

Additional Types of Joint Custody

There are further joint custody situations that parents can come upon. One involves equal physical contact with the child but unequal legal custody. This could imply that the child will only live with one parent while both parents agree to work together to make parenting decisions.

Example: Mother and Father agree to jointly resolve all significant matters pertaining to the welfare and raising of the child (legal custody), however the child will reside with Mother, with the Father being granted visitation rights. A parent who has visitation rights is allowed to spend a specific amount of time with their child.

There are several forms of joint custody. For instance, even though the child spends time with both parents on a rotating basis, one parent can be given the entire authority to decide on the child’s educational options.

Get Legal Assistance from a Professional in Your Child Custody Dispute

It can be advantageous to have a knowledgeable attorney defending and guiding you in a custody dispute. Whether you want shared custody or some other arrangement, a child custody lawyer can help you get the best outcome for you and your child. Get a jump start right now by getting in touch with a local child custody lawyer.

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When Is it a Bad Idea to File Bankruptcy Without an Attorney?

Almost often, hiring legal counsel to represent you in bankruptcy is a wise decision. Here are two scenarios where legal counsel is always necessary.

You’ve Got a Difficult Chapter 7 Bankruptcy

You’ll probably want a lawyer if you operate a small business, make more money than the average resident of your state, have a sizable quantity of assets, priority debts, nondischargeable debts, or creditors who can sue you for fraud. This is why.

A Chapter 7 case cannot be automatically dismissed by the filer. The bankruptcy court may reject your case or liquidate assets you believed you could keep if you make a mistake. A bankruptcy case could potentially be brought against you to decide whether or not a debt should be dismissed. If you lose, the debt will still need to be paid after filing for bankruptcy.

What Are Nondischargable Debts and Priority Debts?

A great tool for many people who are drowning in debt to get back on their feet is bankruptcy. However, it might not completely discharge your debt. In addition to being non-dischargeable, many “priority” debts also have the advantage of being paid off first if funds are available to pay creditors.

Child support, spousal support, or another domestic support duty, fines, penalties, and restitution imposed as punishment for breaking the law, some taxes, and impaired driving obligations are among the top debts you’ll still be accountable for after filing for bankruptcy.

You’ll still be liable for the following debts:

Retirement plan loans can be utilized to pay off debts that were deemed non-dischargeable in a prior bankruptcy as well as non-dischargeable tax debt (for example, if you used your credit card to pay a tax bill).
Unless you can demonstrate that completing your payments would put you in difficulty, a student loan won’t be forgiven either. The majority of people, however, fall short of the requirement. The lawsuit that is required to establish the case may also be expensive to file and defend.
Additionally, any creditor may seek the court to identify a debt that shouldn’t be dismissed in your case by filing a nondischargeability complaint.
The creditor will have to demonstrate one of several scenarios in order to prevail.
You lied about your income on a credit application or wrote a bad check, for example, to commit fraud.
Less than 90 days before you filed for bankruptcy, you charged a luxury item.
You harmed or destroyed someone else’s property on purpose.
You stole money or embezzled money.
In your bankruptcy petition, you omitted a list of all your creditors.
It’s usually not a smart idea to represent yourself if you think you might have nondischargeable debts or that a creditor would sue you.
You must submit a Chapter 13 bankruptcy petition.

Chapter 13 bankruptcy filings are preferable than Chapter 7 filings for a variety of reasons. If you want to keep your home, you might wish to apply for Chapter 13 bankruptcy to pay off mortgage arrears. Alternatively, you might choose to pay off your second mortgage, “cram down” or reduce a car loan, or repay a debt over time that won’t be discharged in bankruptcy, such back taxes or support arrears.

Even if your main reason for filing for Chapter 13 is that your income is too high to qualify under Chapter 7, most Chapter 13 cases are too complicated for an individual to file on their own.

Why Filing a Chapter 13 Case Without a Bankruptcy Attorney Is Too Difficult

You must prepare a proposed Chapter 13 repayment plan outlining how you would pay creditors over a period of three to five years in addition to filling out the bankruptcy paperwork.

Without the pricey software that most attorneys use, it is difficult to develop a plan due to the numerous bankruptcy requirements you must follow. Additionally, particular measures like paying off a car debt in full or stripping your second mortgage will necessitate submitting additional bankruptcy motions and paperwork with the court.

The vast majority of Chapter 13 cases filed without counsel are dismissed by the court due to the complexity involved. Therefore, it is a good idea to hire an experienced attorney if you intend to file a Chapter 13 bankruptcy.

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Married Debt

Whether you are liable for your spouse’s debts depends on whether you live in a community property or equitable distribution state.

Whether you and your spouse are responsible for paying each other’s debts will depend primarily on where you live. If your state follows “common law” property rules, spouses are only liable for their own debts, with a few exceptions. For instance, both spouses must pay debts for family necessities like food, shelter, or tuition for the kids, although how states treat joint and separate debts varies slightly, so you’ll want to check your state laws.

However, if you live in one of a few states with “community property” rules, both you and your spouse will owe most debts incurred by either one of you during the marriage.

Keep reading to learn more about:

  • when you owe your spouse’s debts, and
  • how community property laws will affect you and your spouse in bankruptcy.

If you plan to file for bankruptcy in California or another community property state, you’ll want to know about the “limited community property discharge” that arises when only one spouse files for bankruptcy. Although all community property will be safe from creditor collection, the nonfiling spouse’s separate property will remain at risk.

Community Property States

The states that follow community property rules are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. (In Alaska, spouses can sign an agreement making their assets community property, but few people choose to do this.)

When Are You Responsible for Your Spouse’s Debt?

In community property states, most debts incurred by either spouse during the marriage are owed by the “community” (the couple), even if only one spouse signed the paperwork for a debt. The key here is during the marriage. So if you incur a debt, such as a credit card balance, while you’re single and then get married, it won’t automatically become a joint debt. However, an exception can occur when a spouse signs on to an account as a joint account holder after getting married. Some states, like Texas, have a more nuanced way of analyzing who owes what debts by evaluating who incurred the debt, for what purpose, and when.

After a legal separation or divorce, only the spouse who incurred the debt owes it unless the debt was incurred for family necessities, to maintain jointly owned assets (for example, to fix a leaking roof), or if the spouses keep a joint account.

If you’re considering wiping out debt in bankruptcy with a debt discharge, start by learning how bankruptcy works and what to avoid before filing for bankruptcy.

How Are Income and Property Shared Between Spouses?

In community property states, couples share income, as well. All income earned by either spouse during marriage and property bought with that income is community property, owned equally by husband and wife. Gifts and inheritances received by one spouse and separate property owned before marriage that remains separate are the respective property of one spouse alone. Comingling a gift or inheritance, such as by adding it to a joint bank account, could erase the protection. All income or property acquired after a divorce or permanent separation is also separate.

What Property Can Be Taken to Pay Debts?

In a community property state, creditors of one spouse can go after the assets and income of the married couple to make good on joint debts, and remember, most debts incurred during marriage are joint debts.

You’ll find out more about when you’re responsible for your spouse’s business debt here.

Creditors can go after joint assets in a community property state no matter whose name is on the asset’s title document. For example, a business owner’s name might not be on the title to her spouse’s boat. Still, in most community property states, that won’t stop a creditor from suing in court to take the boat to pay off the business owner’s debts assuming the boat was purchased with community funds and not separate funds.

Community property collection rules also apply to a spouse’s separate debt, such as one spouse’s child support obligation from a prior relationship, or a debt in one spouse’s name only where the spouse hid the marriage. In that case, a creditor can go after only that spouse’s half of the community property to repay the debt.

Do You Owe Your Spouse’s Student Loans?

With one exception (see below), the community property rules apply to student loan debt the same way they apply to other debts acquired during the marriage. Both spouses are responsible 100% for a student loan taken out during the marriage even though only one spouse signed for it. When the parties divorce, each spouse will be awarded 50% of the debt in the property settlement.

California presents an exception to the rules applied in other community property states. According to California law, student loans aren’t community debts, and a judge doesn’t have to split this kind of debt 50/50.

Recognizing that a student loan can benefit both spouses, California takes a more equitable approach than other states. In assigning each spouse a percentage of the outstanding student loan, a judge will consider factors like:

  •  the effect of the course of study on the community
  •  whether the other spouse also went to school, and
  •  the course of study’s effect on the spouse’s ability to support the community.

How to Remove a Spouse’s Liability

Couples in community property states can sign an agreement with each other to have their debts and income treated separately. Signing a pre- or postnuptial agreement like this can make sense for a couple before one spouse goes into business. But if you’re already in business, signing an agreement now won’t protect your spouse from liability for business debts that you already owe, only from liability for future business debts.

Keep in mind that this agreement will be between you and your spouse. It likely won’t affect whether a creditor can pursue you for debt, only your ability to pursue your spouse’s personal assets for payment. Check with your family law lawyer or bankruptcy lawyer for clarification.

You can also sign an agreement with a particular store, lender, or supplier, stating that the creditor will look solely to your separate property for repayment of any debt, essentially removing your spouse’s liability for any obligation or debt from the contract—if you can get the other party to agree.

How Does Bankruptcy Work in Marriage?

If only one spouse files for Chapter 7 bankruptcy in a community property state, creditors can collect community debts against the nonfiling spouse. However, the creditor can’t forcibly take community assets to pay community debt discharged in the filing spouse’s bankruptcy. The creditor can only collect against the nonfiling spouse’s separate property.

This protection is known as a “limited community property discharge.” (11 USC § 524(a)(3).) Also, if you’re considering divorce, talk with your lawyer about the effect the divorce will have on your limited community discharge. You could likely lose its protection. Learn more about filing for bankruptcy without your spouse.

Source

https://www.nolo.com/legal-encyclopedia/debt-marriage-owe-spouse-debts-29572.html

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