Posts Tagged ‘Custody lawyers’

Finding The Right Attorney: Finding an Appropriately Balanced Attorney

Wednesday, January 2nd, 2013

Arizona Divorce Lawyer Discusses How To Find The Right Attorney

Submitted by Attorney Douglas C. Gardner

I have always found photos of the heavy built person with the bulldog on a leash next to the overly stylistic person with the overly dressed up French poodle to be hilarious.  People joke about other people finding dogs that most resemble them.  Throughout my law practice, I have often found that many clients seem to select lawyers who resemble themselves in many ways.  Specifically, people of low morals and ethics seem to be able to find attorneys with low morals and ethics.  Overly aggressive individuals seem to seek out attorneys who will be overly aggressive.

Such behavior can become quickly problematic, as it may be more advantageous to have an attorney who is appropriately balanced.  When I am representing clients in a divorce, I recognize and understand that my clients are normal people, but that they are going through what is most likely the most difficult time in their lives.  Generally clients in divorce cases are struggling financially (which usually occurs even before the divorce starts, and may be part of the cause).  Clients going through divorce cases have to juggle parenting duties that were historically divided between the other parent.  Clients going through divorce have strong emotions that they must work through including the hurt, betrayal, anger, etc.

I feel that when hired as a divorce attorney, my job is to recognize the emotion, but to not get pulled in or effected by the emotion.  I feel that as a divorce attorney I am the legal and logical “Jiminy Cricket” proverbially on my client’s shoulders whispering to them what the legal and logical choice would be and helping them see beyond their emotional choices.  Choices made during a divorce often have life-long lingering effects, and should be carefully considered from the emotional, legal, and logical perspectives before making any decision.

The problem with overly aggressive people seeking out overly aggressive attorneys, or less ethical people seeking out less ethical attorneys, is that instead of an advocate fighting to  help you understand what is best, you may hire a cheerleader that will simply encourage you to act out emotionally without considering the logical and legal ramifications.

Any divorce attorney who has handled more than a few cases has been “fired” by a client.  For me, it does not happen often, but does occur.  I have certainly been hired by many more clients who have fired prior attorneys than I have been fired from.  I have found it interesting that I am usually fired for one of two reasons:  1) being too nice, or 2) being too aggressive.  Whenever I have a client that indicates that he/she is not fully satisfied with my services, I explain to them how we can fix things to make it right, and I discuss with them that they have the option of representing themselves or hiring another attorney (within our firm or from another firm).  It is important for clients to have confidence in their chosen attorneys, so that clients trust the legal and logical advice given.  It is important for clients to have confidence in the strategy (for settlement and/or for trial) utilized by the attorney.

My general preference in any case is to come in nice, and to try and resolve cases amicably through settlement.  I have learned that when I come in too harsh and too strong that it may cause the case to go through litigation unnecessarily.  It is generally easier to get meaner and nastier as the case progresses than the other way around.  Some clients are looking for attorneys that will instantly be on the attack.  While there are certain cases where this is appropriate (such as an emergency cases where emergency orders are needed right away), in general, those attorneys who come on unnecessarily strong at the beginning of a case do so simply to ensure that the case costs much more than it would have otherwise needed to cost.

Even when taking the gloves off, it is important to have an attorney who remains ethical and professional at all times.

If you are involved in a divorce case or other parenting time case involving “legal decision making” (the new word for legal custody), or other simple or complex issues and want experienced legal representation, please call 800-899-2730 and ask to speak with Douglas C. Gardner, or visit our website at yourarizonadivorcelawyer.com.

Last Month For Custody

Monday, December 10th, 2012

Arizona Divorce Lawyer Says Goodbye to Custody

Submitted by Attorney Douglas C. Gardner

I mentioned this in my blog last month, but this is so huge I wanted to address it once more.  Goodbye Custody.  In a recent seminar, where most of the top divorce and family law attorneys and many of the family law judges were gathered, the primary topic was the end of “custody.”

One attorney suggested a marketing campaign of “Last Chance to Get ‘Custody!’”  Most people have no idea that they will no longer be able to go to court to get custody beginning January 1, 2013.

While this may sound like a big change, it is primarily semantics.  Sole Legal Custody and Joint Legal Custody are being replaced with the terms “Sole Legal Decision Making” and “Joint Legal Decision Making.”

At least initially, not much changes except for the wording.  There are several other changes to the law that will over time alter the trajectory of the family law changes that have been happening for decades.

If you need to establish “custody” or “legal decision making” for the first time, or if you have a custody order and you are returning to Court, beginning in January the Courts will be required to put into effect orders for “legal decision making.”  Existing “custody” orders will remain valid, but as each case returns to court, the new replacement orders will no longer include the “custody” terminology.

Do not let this scare you.  While this is your last month to get Custody, very little has actually changed in the short term with this new law. Over time, we will continue to see important changes and you will want to ensure that you are represented by an attorney that is aware of these changes and in tune with the ever-changing law.

If you are involved in a divorce case or other parenting time case involving “legal decision making” (the new word for legal custody), or other simple or complex issues and want experienced legal representation, please call 800-899-2730 and ask to speak with Douglas C. Gardner, or visit our website at yourarizonadivorcelawyer.com.

Arizona’s New Family Law Changes

Saturday, December 1st, 2012

GILBERT, TEMPE AND MESA ARIZONA DIVORCE AND FAMILY LAW LAWYER DISCUSSES SIGNIFICANT CHANGES TO FAMILY LAW STATUTES

Submitted by Attorney Douglas C. Gardner

                       

As of January 1, 2013, Arizona Courts will no longer decide custody cases.  Parents will no longer receive visitation with their children in divorce and other child related cases.  There are several significant and important changes to Arizona statute that will go into effect on January 1, 2013.  I hope I have your attention.

Many of these new changes are semantics, and simply a change in the words we use and the definition of those words.  Courts will still undertake the same issues, but rather than entering orders for sole custody or joint custody, the Court will enter orders regarding which parent will be the “legal decision makers.”

Also, by definition, a parent will no longer have “visitation” but will have “parenting time.”  Only grandparents and other non-parents can get court ordered “visitation.”

While peripherally, these changes will simply make it difficult for attorneys and judges to remember what the new jargon is, the real change will come as time marches on.  These new changes are intended to dramatically further the co-parenting and the joint involvement of both parents.

Up through the late 1970s and  early 1980s, the Courts were legally to consider the presumption that a mother was the parent with whom children of “tender years” were to reside with.  This was legally eliminated some 30 years ago, but has continued to linger while slowly going away.

Over the last few years, there has been a dramatic additional shift towards having father’s more significantly involved.  More and more judges are starting with the presumption of an equal parenting time plan rather than the presumption that mom will have the children except on alternating weekends.

Another big change is the elimination from the list of items for the Court to consider in custody cases of “which parent has been the primary care provider.”  This often favored mothers, as mothers more often provide the primary care for younger children.  This has been replaced with “the past, present and potential future relationship between the parent and the child.”  This more future looking consideration may have a very significant impact on many child related cases.

The long term effects of these changes are yet to be determined.  The clear intent of the legislature is to ensure that there is no bias based upon the gender of the parents.

If you are involved in a divorce case or other parenting time case involving “legal decision making” (the new word for legal custody), or other simple or complex issues and want experienced legal representation, please call 800-899-2730 and ask to speak with Douglas C. Gardner, or visit our website at yourarizonadivorcelawyer.com.

 

Increasing Prevalence of Half-Time Schedules

Monday, September 3rd, 2012

By Attorney Kirk Smith

Mothers in the past were typically the parent of first choice when it came to receiving primary physical custody of  minor children. The orders of the court usually allotted more days each week to the mother, rather than the father.  Today most judges in Arizona take a more egalitarian view when it comes to allotting what amount of time each parent should spend with the minor child(ren). Due to this evolution in thinking, half-time schedules between parents are becoming much more prevalent in divorce and custody cases.

A half-time schedule is one where each parent is allowed close to, or exactly one half the amount of time each week or two week cycle, with their child(ren). Half-time schedules can be broken up in various ways depending on the availability and preferences of the parents. Some examples of half-time schedules are; 7-7, 2-2-3, and 3-3-5.

A 7-7 schedule would be one week with mom, then, one week with dad. A 2-2-3 schedule would be two days with dad, then two days with mom, and alternating weekends with mom or dad. So long as the time period in question, which generally would be a week or two week cycle, is split in a relatively even fashion it is considered a half-time schedule.

Good news for any non-custodial parent who is wanting more time with their child(ren) but was afraid that the courts would only give them every other weekend. This is not to say, that if historically speaking, one parent has spent more time with the child(ren) then the other, that the courts won’t look at this factor in making an appropriate decision. None the less this factor alone is not always outcome determinative and will be one of several factors the court can consider.

For a parent wanting to request a half-time schedule from the courts, that parent should keep in mind the age of minor child(ren) in devising which half-time schedule they would like to propose. Studies have shown that younger babies or toddlers need more frequent contact with both parents, whereas, older children can go longer periods without seeing either parent. Consequently, a one week on and one week off schedule would not be the best half-time schedule to propose for a very young child. Under those circumstances a better suggestion to the court might be to propose a 2-2-3 schedule to accommodate the minor child’s(ren) burgeoning emotional needs.

Nothing is ever guaranteed when going to court to resolve disputes between parties. Regardless, a non-custodial parent who has consistently “been there for their children” has a much better chance today, then in the past, of seeing their child(ren) at least one-half of the time.

If you are in need of legal counsel and would like to speak with an experienced family law attorney, please call 800 899-2730  or visit our website at yourarizonadivorcelawyer.com. or www.davismiles.com

Strategic Reasons for Being Nice-Custody Determination

Friday, June 8th, 2012

 

Submitted by Attorney Kirk Smith

 

In many cases, parents divorcing, or parents who were not married but are now separating, will fight a merciless custody battle for their children. The extreme acrimony attendant with such battles, in my experience, can have a very real impact on the children of these divorces. Increased cooperation between the parents lessens this emotional impact, and by itself, should be sufficient incentive for most parents to “play nice” during the subsequent legal process.  

 

None the less is there a strategic reason for one parent to be gracious to the other, outside altruism, that benefits them in the court’s final custody determination?  

 

In most cases one parent will become the primary physical custodian of the children, meaning that that parent will have the children at their residence the majority of the time each week. There are specific statutory factors the family law court examines when determining who becomes the primary physical custodian of the children. See Generally A.R.S. §25-403. 

 

One of the factors the court looks at in determining who should receive primary physical custodianship is;

 

Which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent. This paragraph does not apply if the court determines that a parent is acting in good faith to protect the child from witnessing an act of domestic violence or being a victim of domestic violence or child abuse.A.R.S. § 25-403 (6)

Of course in some cases the other parent is a real danger to the children therefore it is necessary to diminish that other parent’s time with the children or ask that it be supervised. More often then not, however, both parents are usually suitable to care for the children, and an attempt to completely eliminate the other parent’s time with the children will be seen by the court negatively. The parent trying to “thwart” the other parent’s visitation with the children then could seriously and detrimentally effect that parent’s  chance of becoming the primary physical custodian because that parent did not “allow the child frequent and meaningful continuing contact with the other parent.”

If you are in need of legal counsel and would like to speak with an experienced attorney, please call 800 899-2730  or visit our website at yourarizonadivorcelawyer.com. or www.davismiles.com

A rule of thumb, assuming that the other parent is not a danger to the children, is to allow and encourage the other parent’s time with the children. This does not mean that you must have a half time schedule with the other parent, nor does it mean that anytime the other parent asks for time it must be provided. What it does mean is that going to extremes by trying to eliminate the other parent’s access to the children without good cause, strategically speaking, can backfire and decrease your chances of gaining the final custody determination from the court you wish.

 
 
 
 
 
 

 

 

 

 

 

 

RELOCATION ISSUES

Tuesday, May 29th, 2012

Seasoned attorney, Ron Fineberg, addresses the issue of relocation and what Arizona law requires of parents. 

 

Q&A’s

 

Question:

Our divorce was final two years ago.  The father and I were granted joint custody of our two minor children with substantially equal parenting time (visitation).  Because of my job, I need to move to California.  What do I do if the father will not agree to allow the children to move with me?

 

 

 

Answer:

 

Under those circumstances, Arizona law requires that the parent who wishes to “relocate” with a child outside of the state, or more than one hundred miles within the state, must provide the other parent written notice by certified mail, return receipt requested, at least sixty days prior to the anticipated relocation.  If the non-moving parent opposes the relocation, that parent may petition the court to prevent relocation of the child.  The petition to prevent relocation must be filed within thirty days after the notice is made, otherwise the petition to prevent relocation may be granted to the non-moving parent only upon a showing of good cause. 

 

If the petition to prevent relocation is timely filed, it is then up to a judge to determine whether or not to allow the parent to relocate the child after considering the “best interests” of the child.  The burden of proving what is in the child’s best interest is on the parent seeking to relocate the child.  A.R.S. §25-408, 25-403(A) and ARFLP 91(E).

 

If you are in need of legal counsel and would like to speak with an experienced attorney, please call 800 899-2730  or visit our website at yourarizonadivorcelawyer.com. or www.davismiles.com 

HAPPY ANNIVERSARY DAVIS MILES MCGUIRE GARDNER

Wednesday, May 23rd, 2012

 A customer is the most important visitor on our premises; he is not dependent on us. We are dependent on him. He is not an interruption in our work. He is the purpose of it. He is not an outsider in our business. He is part of it. We are not doing him a favor by serving him. He is doing us a favor by giving us an opportunity to do so. Mahatma Gandhi 

This June marks our one-year anniversary of merging two strong law firms, Davis Miles and McGuire Gardner.

Choosing to merge was not a difficult decision when you consider the benefits our clients now have available to them. The objective was and is to provide a convenient spectrum of legal services while maintaining our high standards.

Davis Miles McGuire Gardner now has over 50 attorneys in 27 practices including, Arbitration, Bankruptcy, Commercial Collections Corporate/LLC, Criminal & DUI, Estate Planning, Family Law, Immigration, Intellectual Property, Litigation, Mergers & Acquisitions, Real Estate, Tax Law, Trusts & Estates/Planning, and more.

A vital business practice is monitoring and measuring our success and recognizing what areas we need to improve.  At Davis Miles McGuire Gardner we are pleased that our commitment to professional standards of conduct was recognized by Martindale-Hubbell’s who awarded us the highest ratings.  Another litmus test is other firms and peers. In a peer review we ranked at the highest level.

As a result of our continued efforts to meet and surpass our clients expectations, DAVIS MILES MCGUIRE GARDNER continues to serve as the provider law firm for LegalShield (PrePaid Legal). Legal Shield continues to provide outstanding legal counsel to their growing clientele in New Mexico and Arizona.

The merger of these two firms is only part of the process in creating an all-encompassing firm for our clients and their needs. We will continue to seek out the best attorneys who are equally dedicated to serving our clients with integrity, consideration and respect. 

If you are in need of legal counsel and would like to speak with an experienced attorney, please call 800 899-2730  or visit our website at yourarizonadivorcelawyer.com. or www.davismiles.com

 

 

TEMPE AND MESA ARIZONA DIVORCE AND FAMILY LAW LAWYER COMMENTS ON COMMON TAX ISSUES

Thursday, May 3rd, 2012

Arizona Divorce And Family Law Tax Issues Must Be Considered Year Around By Attorneys and Parties

In dealing with hundreds of divorce and family law cases, parties and even many lawyers often forget to include provisions regarding common tax treatment. These important financial issues should not be overlooked.  As the April tax deadline for 2011 is behind us, we must nonetheless continue to look at 2012 and future tax years in all settlement and trials.

The most common issues is the claiming of the children for tax exemptions.  Under the federal Internal Revenue Service (IRS) rules, the parent with whom the child resides the greater part of the year is entitled to claim the child as a general rule.  The Federal IRS rules do, however, allow for the State Court divorce judge to make a different allocation.  Under Arizona family law, the statute requires that in most cases the Judge must divide the claiming of the children proportionate to income.  As far as the IRS goes, this is taken care of by the use of form 8332 which can be found online or obtained through a tax preparer.

It is to the benefit of both parties to consider who will benefit most from the tax exemption.  In some cases in which one party will receive a substantially greater advantage than the other party, one party can be permitted to claim the child every year in exchange for an increase or decrease in child support.  This would be done by agreement of the parties and should be included in an Order signed by the Court.

Another common issue is whether to file jointly or separately.  It is often financially advantageous to file jointly, though in high conflict cases the difficulty in working together toward a common goal may outweigh the financial advantage.  The total tax return can be divided equally in some cases.  In other cases, it is more fair to calculate the two returns separately, and then determine how to split the incremental increase in the refund if the parties file jointly.  Talk with your tax preparer or CPA regarding filing jointly or separately, and work with your divorce or family law attorney to ensure that your agreement is written in such a way to maximize your tax benefit.

There are tax advantages to being able to file as the head of household.  Generally this can be claimed by the parent with the child the majority of the time.  If divorcing couples have more than one child, they may each be able to claim at least one child as the head of household.  This should be reviewed by your tax preparer or CPA, and worked through with your divorce and family law attorney.

In some cases, it may be advantageous to file single, rather than married filing separately.  Even if your divorce case has not concluded, there are specific rules that when applicable may allow a party to file a single.  These rules include maintaining a separate residence for all of the past six months of the taxable year, and maintaining over half of the cost of maintaining the home.  You should work through these issues with your tax preparer or CPA, and work with your divorce lawyer to ensure that any agreements or court orders permit you to file as you have been advised by your tax professional.

Because the tax issues can be complex, you should ensure that you work with an experienced family law attorney or divorce lawyer.  If you are involved in a divorce or custody case, and are looking for experienced representation involving tax issues or other complex issues, please call 800 899-2730 and ask to speak with attorney Douglas C. Gardner, or visit our website at yourarizonadivorcelawyer.com.