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Category Archives: Uncategorized

Archives: Uncategorized

Support HB 2153!

Call your local representative and urge the representative to support HB-2153. This bill is helpful to fathers because it would change the law by making it harder for judges to vary from an equal parenting time plan in contested child custody cases.

Currently, the law says that it is the public policy of Arizona that it is in a child’s best interest to have substantial, frequent, meaningful, and continuing parenting time with both parents and to have both parents participate in the decision-making about the child.

The current law is already an improvement over the prior law, which had left the matter of how to define the “best interest of the child” completely up to the judicial branch of government.

However, even the current law is not strong enough. Based on anecdotal evidence from conversations with other family law attorneys and observation of judicial rulings, it still seems that judges not infrequently tend to err on the side of the mother when all else is equal.

HB-2153 would require that a judge award substantial, frequent, meaningful, and continuing parenting time to both parents and give both parents the right to participate in the decision-making about the child, unless – and here’s the specific language HB-2153 adds to the current law – the judge find that there is “clear and convincing” evidence to the contrary. This is a very high standard for mothers to overcome.

In the law, there are generally three evidentiary burdens of proof. The first is the one many of us are familiar with: “beyond a reasonable doubt.” This is the highest evidentiary standard and is the one applied in criminal cases. There must be no reasonable doubt at all. Essentially, this means a judge or jury needs to be 99% certain that the person committed the crime.

Another standard of proof is “preponderance of the evidence.” This means that the judge only needs to find that there is a 50.1% chance that the mother is correct regarding why she should have substantially more parenting time than the father. As you can imagine, this easy evidentiary standard makes things very hard for a father in family court. If the judge sides with the mother and gives her the majority of the parenting time, the father’s appeal is likely to be denied, because appellate judges give great deference to the trial judge who heard the testimony and assessed the credibility of each party and that party’s evidence.

HB-2153 would change the standard to a “clear and convincing” standard of proof. To meet this burden, the mother must prove her allegations by a 75% or better standard. (Technically, there is no specific percentage designated; this specific percentage is just being stated to give you an idea of the much greater burden of proof this is than in general civil cases.)

This is “clear and convincing” standard of proof is a much higher standard of proof than the current “preponderance of the evidence” standard, and is likely to result in far few mothers getting the majority of the parenting time in custody trials. And in those cases where the judge still sides with the mother, the father should have an easier time attacking the ruling on appeal.

So, I repeat: Call your local representative and urge the representative to support HB-2153. Then urge your friends and family to do the same. This change in the law would be a great development for fathers.

Do The Rules Of Evidence Apply In Arizona Divorce Cases?

Last decade, Arizona experimented with relaxing the rules of evidence. In Arizona, prior to this change, family law cases, such as divorce and child custody cases, were subject to the formal rules of evidence that apply in civil and criminal court. However, this proved to be a hindrance to the efficient disposition of cases, especially those involving self-represented parties. This is because if a person does not follow the formal rules of evidence exactly as required, important information can be kept out of the trial, and conversely, very damaging information could be let in (if the proper steps were not taken to keep it out before it was let in).

When Arizona changed its application of the rules of evidence in family law cases, it started with the default status of a relaxed version of the evidentiary rules. The most obvious and important of the changes is that hearsay evidence is now admissible in family court cases unless it is so extreme that it would be too damaging to allow it to be talked about or used in court. Another important change is that with regard to proving the authenticity of documents, building an evidentiary foundation, and other matters that used to take up lots of time in court, you can simply use the documents if they appear to be legitimate (authentic and untampered-with). Family law hearings and trials are much shorter than civil or criminal hearings and trials.

Whereas a civil trial can go on for weeks in some cases, most divorce and child custody trials take only hours. Divorce and custody cases in Arizona should be scheduled for at least a day on average, but unfortunately that rarely happens. Because there is so little time for trial, relaxing the rules of evidence has enabled parties to present far more evidence and testimony than used to be the case before the changes to the rules of evidence were implemented. An important decision an attorney must make is whether to demand that the strict, formal rules of evidence be applied. That is an option in every case. Nobody is forced to present their case under the informal evidentiary rules.

In a good number of cases, depending on what your objective is, it is much better to force the other side to comply with the strict rules of evidence in order to prevent them from loading their case with evidence that is of questionable value or reliability. This is the kind of decision that many people who represent themselves fail to consider. Even many family law attorneys appear to routinely operate under the informal evidentiary rules without considering the consequences. You want to hire an attorney who is able to make a good judgment about whether your case should be heard under the relaxed rules of evidence or the formal, strict rules of evidence.

Your case could be won or lost with just this one decision that appears to be overlooked by many family law attorneys.

Can Someone Lose Their Pet To Their Spouse In A Divorce Case?

Nearly seventy percent of households in America have a cat or dog or both. What happens to these pets in divorce cases in Arizona? People are very attached to their pets and often consider them to be members of the family. Pets themselves are often very attached to their owners and probably will be emotionally affected if they are separated from the owner they are most closely bonded to. Unfortunately, Arizona law is very harsh toward pet owners. Under Arizona law, pets are considered to be community property if they were acquired during the marriage from community sources (such as the income of either or both spouses during the marriage).

If the pet was owned before marriage, it continues to be the sole property of that spouse. If the pet was a gift from one spouse to the other, it belongs to the spouse who received it as a gift. If the pet was a gift from a third party, it belongs to the spouse who received it as a gift. If the pet was received from a third party as a gift to both spouses, then the pet is treated as community property. When a pet is treated as community property, it is coldly considered to be no different than a chair, bed, or dresser. If the pet has special monetary value (a show dog, for example) the pet’s value will need to be determined and offset by other property.

For example, if the pet is worth $1,000 and you receive the pet in the court’s division of your property, your spouse will need to receive property of equivalent value. However, the pet’s true value is emotional in nature and cannot be monetized. That is a major problem for divorcing couples. If the divorcing couples are cooperative, they can agree to share the pet. A good divorce attorney can help you to draft an enforceable agreement to share your pet with your ex. But if you and your spouse cannot agree to share the pet, the judge is going to award the pet to just one of you.

If you need the pet for a disability, then you are very likely going to be the spouse who is awarded the pet. But even if you by far are the spouse who is most emotionally attached to the pet that does not guarantee that you are the one who is going to be awarded the pet. A vindictive spouse can use the pet against you as leverage in settlement negotiations. It is important to have a good divorce attorney on your side to find other things to use against your spouse in negotiations or at trial in order to increase the likelihood that you will be the spouse who is awarded the pet that brings you so much joy.

For more information on Rules Of Evidence In Divorce, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling today.

Custody Win

Mr. Thomas represented Father. Mother wanted to relocate both children to Michigan, where she obtained employment and moved to care for her ailing parent. Mr. Thomas convinced the trial judge that the children (both girls) should remain in Arizona with Father.

Mr. Thomas has been fighting hard for clients since 1996. He looks forward to fighting hard for you, too - Contact us TODAY!
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