Wednesday, February 22, 2017

DOMESTIC VIOLENCE AFFECTS CUSTODY UNDER ARIZONA LAW

Nearly 20 people per minute are physically abused by an intimate partner in the United States, according to the National Coalition Against Domestic Violence (NCADV).[1] This equates to more than 10 million victims per year, both women and men.  Domestic violence harms individuals of all ages in physical, emotional, and even economic ways, but what many people don’t know is that it also affects custody of children.

Victims of domestic violence are protected by Arizona’s laws, which provide that all of the following constitutes domestic violence:

·       Sexually assaulting or causing serious physical injury to a family or household member
·     Attempting to sexually assault or cause serious physical injury to a family or household member
·      Making family or household members afraid that they are about to suffer immediate physical injury
·      Engaging in a pattern of abusive behaviors that are serious enough to permit a court to issue a protective order for the victimized parent or child

Acts that qualify as domestic violence can include threats, harassment, intimidation, stalking, unlawful imprisonment, trespassing, damage to property, kidnapping, photographing and secretly watching victims without their consent, physical assault, and many other things.  In our modern society, abuse can also be inflicted through electronic means, including the telephone and Internet.  Those protected under the law include current and former spouses, people who live together or used to live together, people who have a child together, relationships in which one of the partners is pregnant with the other partner’s child, people related by blood or marriage, children, and those who are or were in a romantic or sexual relationship.

Arizona has enacted statutes creating “domestic violence presumptions” in child custody cases, essentially stating that an abuser’s actions and future potential actions would be harmful to the child.  In other words, if the court finds that a parent committed acts of domestic violence against the other parent, then it is akin to abusing the child, and the judge must presume that giving custody to the abuser is not in the child’s best interests.  However, the presumption is “rebuttable,” and the court may decide that the perpetrator has overcome the presumption by evaluating the following factors:

·      Whether the perpetrator proved that being awarded sole or joint custody is in the child’s best interests
·      Whether the perpetrator successfully completed a batterer’s prevention program
·    If applicable, whether the perpetrator successfully completed alcohol or drug abuse counseling ordered by the court
·     Whether the perpetrator successfully completed parenting classes ordered by the court
·    Whether the perpetrator has committed additional acts of domestic violence against anyone else,

In determining which parent should have custody of the child, Arizona judges must consider the best interests of the child, which necessarily involves the contemplation of domestic violence.  Specifically, two of the factors that Arizona judges consider are (1) whether there has been domestic violence or child abuse and (2) whether either parent was convicted of falsely reporting child abuse or neglect. 

The bottom line is this:  In Arizona, a parent who is guilty of domestic abuse is less likely to get custody.  In fact, if there is evidence of domestic violence, parents cannot share joint legal custody.  In very serious cases where there is a pattern of child abuse, a petition can be filed asking the court to terminate a parent’s rights.  Termination means that a parent loses all rights to both the physical and legal custody of a child.

The best interests of the child—and the protection of the child—is the Arizona Court's main priority. Although Arizona has created a presumption that it is harmful to the child, and not in his/her best interest for the perpetrator of domestic violence to have sole or joint legal decision-making authority, some cases still slip through the cracks.  Therefore, if you are a victim of domestic violence, it is important to seek legal advice to better protect yourself and your family.

Jacinda Chen & Gary Frank


      At the Law Firm of Gary J. Frank P.C., both Gary Frank and attorney Hanna Juncaj are strong litigators and compassionate counselors. Gary Frank is a Family Law Attorney with over 30 years of experience as a litigator and mediator, which includes having acted in the capacity of a Judge Pro Tempore in the Maricopa County Superior Court; and serving on the Governor's Child Abuse Prevention Task Force. Hanna Juncaj is a highly-skilled attorney with a passion for Family Law and children's issues. We handle Family Law cases in the areas of divorce, custody (now called "Legal Decision-Making and Parenting Time), relocation (move-away), division of property, spousal and child support, modification and enforcement actions, grandparent and non-parent rights, and all other matters pertaining to families and children. If you are in need of a consultation, please do not hesitate to call our office at 602-383-3610; or you can contact us by email at gary.frank@azbar.org, or through our website at www.garyfranklaw.com.   We look forward to hearing from you.   




[1] “Statistics.” National Coalition Against Domestic Violence. N.p., n.d. Web. 22 Feb. 2017. <http://ncadv.org/learn-more/statistics>

Wednesday, January 18, 2017

ARIZONA'S ABORTION CONTROVERSY, CIRCA 1962

With a new administration taking over, a renewed battle over abortion rights is likely to be waged in the U.S. Supreme Court over the next few years.  But in 1962, eleven years before the court decided the landmark Rowe v. Wade case, Arizona was at the center of a national firestorm regarding the issue of abortion.  The controversy raged around Sherri Finkbine, a local television host on the kiddie program, “Romper Room.”  I was a young boy at the time and, like many other children, I had grown up in Phoenix watching the show.  I still remember Miss Sherri, with her magic mirror, her pretty smile, and her soothing voice.

The problem began when Sherri’s husband came back from a trip to Europe.  Sherri was pregnant with her fifth child; and when her husband returned he brought with him a bottle of pills to treat her morning sickness.  Neither Sherri, nor her husband, were aware that the medication contained Thalidomide, a popular drug in Europe and other countries, but one which was not widely used in the United States.  During the early stages of her pregnancy, Sherri took thirty-six of the pills.

That’s when the nightmare began.  News reports began filtering into the United States that Thalidomide had been found to cause gruesome birth defects in fetuses.  The media reported that Thalidomide babies were being born without arms or legs.  Sherri and her husband checked the medication that she had been taking and were horrified to discover that it, indeed, contained the dreaded Thalidomide.  In an instant, their once-happy lives were turned upside-down. 
Sherri’s physician discussed the almost certainty of incapacitating birth defects that the child would be likely to suffer for a lifetime, and he strongly recommended that she obtain a therapeutic abortion.  Abortions were illegal in the United States.  The alternative, one which many women chose at the time, was to undergo a secret “back-alley” abortion.  These were often performed by unethical and incompetent doctors out to make a buck, and they were highly dangerous.  Some were performed by people who were not physicians, and who had no medical training at all.  As a result, it was common for women to contract infections and became seriously ill, or die, following abortions.  That was the landscape in 1962.

Therapeutic abortions were considered to be a narrow exception, and could be performed in hospitals by doctors under very limited circumstances.  Based on her doctor’s recommendation, Sherri prepared herself for a therapeutic abortion.  She was concerned that other women who were taking -- or might take -- Thalidomide should be warned, so before undergoing the procedure she contacted a friend who worked at a local newspaper and related her story.  Sherri was promised anonymity.  But when the newspaper article hit the streets, her identity was disclosed.  The hospital at which the abortion was planned became skittish and backed off.  Fearing bad publicity and possible prosecution, it canceled the procedure.  Sherri’s physician asked for a court order to proceed with the abortion, and that’s when all hell broke loose.

Overnight, Sherri Finkbine, her husband, and her four children became public figures.  She was fired from her job at the television station.  Her children were tormented and bullied mercilessly at school.  Letters and hate mail came pouring in from all over the country, including more than a few death threats.  Ultimately, the FBI was brought in to protect the family.

Now desperate and terrified, Sherri attempted to travel to Japan to obtain the abortion, but was denied a visa by the Japanese Consul.  In the end, she flew to Sweden, where a legal abortion was performed in the twelfth week of her pregnancy.  The Obstetrician who performed the procedure later told Sherri and her husband that the fetus had no legs, and only one arm, and was too badly deformed to be identified as a boy or a girl.


More than fifty years later, the controversy over abortion is still raging.  Our nation has become bitterly polarized over the issue.  Are you Pro Life?  Or Pro Choice?  Should women have the right to make decisions concerning their own body?  Or do the rights of the unborn child trump the rights of the mother?  Should abortion be legal in cases of rape, incest, severe birth defects, or where the mother's life is at risk?  Or are we willing to return to the days of illegal and dangerous back-alley abortions? These are matters of utmost importance.  But instead of engaging in a healthy dialogue, battle lines have been drawn.  Foxholes have been dug.  And rather than welcoming a productive discussion, people on both sides angrily ridicule and demonize each other.  Each side views the other as stupid or evil.  Maybe it’s human nature.  We like to look for simple answers.  And by delegitimizing those with whom we disagree, we are able to avoid the process of having to carefully examine and think through the issues.  But that’s too bad.  Because if we truly attempted to see the matter through our neighbor’s eyes then – even though we may still disagree -- we just might be forced to conclude that there can be more than one legitimate point of view, and maybe then we could reach a reasonable consensus. 

Regardless of the many differing opinions on the subject, I think most would agree that no woman should ever have to suffer the agony, or be faced with the impossible choices, that Sherri Finkbine had to endure in 1962.


Gary Frank


At the Law Firm of Gary J. Frank P.C., both Gary Frank and attorney Hanna Juncaj are strong litigators and compassionate counselors. Gary Frank is a Family Law Attorney with over 30 years of experience as a litigator and mediator, which includes having acted in the capacity of a Judge Pro Tempore in the Maricopa County Superior Court; and serving on the Governor's Child Abuse Prevention Task Force. Hanna Juncaj is a highly-skilled attorney with a passion for Family Law and children's issues. We handle Family Law cases in the areas of divorce, custody (now called "Legal Decision-Making and Parenting Time), relocation (move-away), division of property, spousal and child support, modification and enforcement actions, grandparent and non-parent rights, and all other matters pertaining to families and children. If you are in need of a consultation, please do not hesitate to call our office at 602-383-3610; or you can contact us by email at gary.frank@azbar.org, or through our website at www.garyfranklaw.com.   We look forward to hearing from you.

Thursday, December 29, 2016

CO-PARENTING vs. PARALLEL PARENTING - WHICH IS BEST FOR YOU?

In every divorce, parents must strive to keep the needs of the children as their #1 priority.  Children benefit most when they have relationships with both parents and tend to adjust better to divorce when:

·       They have healthy and happy relationships with both of their parents;

·       Parents don’t argue in the presence of their children;

·       Parents don’t place their children in the middle of disputes; and

·       Both parents are responsive to the needs of their children.

CO-PARENTING

“Co-parenting” describes a situation where the parents are not married, cohabitating or in a romantic relationship with one another.  Co-parenting often involves a parenting situation in which two separated or divorced parents communicate and work together to take care of their children.  Co-parenting can also describe a situation where, after a divorce, the child’s parents desire to maintain equal or equivalent responsibility for their children’s upbringing.  When successful, Co-parenting is a wonderful opportunity for children of divorce to still have access to both parents and retain a sense of family dynamic.  To come to a workable co-parenting arrangement, the parents must consider various factors, including:

·  What decisions need to be made? These commonly consist of decisions regarding education, extracurricular activities, medical treatment, sporting and social activities, religion, etc.

·      How will you make the decisions?  Will you meet in person to discuss decisions?  Will you communicate over the phone?  Email?  Text?

·     How will you share schedules?  How flexible do you want to be in scheduling?  When will the children see each of their parents?  What if one parent is late --  how will you deal with this?  Will the schedule remain the same as the children get older?

·     How will you handle discipline? How can you try to be on the same page when it comes to discipline? How will you communicate when a problem arises? Will each parent handle discipline on his and her own? If a child misbehaves at mom’s house, should he be disciplined by both parents or just mom?  If a child misbehaves in class, should she receive discipline from both parents or just the one she is returning home to?

·   What will happen in an emergency?  Have you provided your ex-spouse with all emergency contact information?  Will the parents notify one another before emergency medical treatment?

·      How will you handle disputes? If the parents cannot agree on a disciplinary issue, how will you deal with it? Is there a mutually-trusted family member or a friend who can help you discuss the matter? If the disagreement involves a medical decision, can you ask the doctor for guidance and advice? Or, if the dispute is an especially difficult one, will you seek the help of a professional mediator?

Because parenting involves a substantial number of decisions in all aspects of the child’s life, it is helpful to draw up a chart listing certain decisions and who should make them.  Here’s a brief example:

Who makes decisions regarding:

Mom
Dad
Together
HOUSEHOLD RULES & CHILDCARE



Allowances



Bedtime



Clothing



Grooming



Computer, software, and video game use



Television shows (which shows, what time)



Cell Phone, Computer, & Internet use



Meals



Toys



Handling behavior problems



RESIDENTIAL



Living situation



Transportation



SOCIAL LIFE



Dating



Driving



Friends



Sports & Social Activities



Sharing Cost of Activities



EDUCATION & MORAL TRAINING



Morals, values



Religion



Choice of Schools



Helping with homework



After school care



Extracurricular Activies &
Expense Sharing



HEALTH



Dentist



Doctor



Medication



Major medical issues



Psychological counseling, if applicable





Unfortunately, harmony cannot be achieved in every case despite both parents’ best efforts to cooperate.  When parents are unable to co-parent in a healthy, effective way that is in the best interests of their children -- or when one of the parents refuses to cooperate -- it can be a source of great conflict and stress for everyone involved. Many studies have found that most children of divorce grow up to be healthy, well-adjusted adults; however, children who are raised in corrosive, high-conflict parental situations are at risk to develop emotional problems that can last a lifetime. Sometimes, divorced or separated parents simply cannot work together, despite all their efforts. When that is the case, they should consider using a technique known as “Parallel Parenting.”

PARALLEL PARENTING

Parallel Parenting is a type of parenting arrangement that is best in situations of high conflict where parents have different parenting styles and can’t see eye-to-eye on even the most basic issues.  It is a form of co-parenting where a mother and father reduce the level of conflict through disengagement.  Specifically, they have limited direct contact with each other. And when they do communicate, it takes place in a more structured manner, such as through email.  Each parent sets rules for his/her own household (bedtimes, homework, TV or computer times, discipline, etc.), without concern that they may be different than the rules that are in place in the other parent’s household.  Some principles to keep in mind include:

·       Parents must never use their children as messengers to communicate back and forth; 

·       All communication must be business-like in nature and relate to information relevant only to the children’s well-being;

·       Schedules should be shared via a calendar or in writing;

·       No changes to the parenting-time schedule should be made without written agreement.

Parallel parenting, if done the right way, can provide children of divorce or separation with the same sense of fulfillment and happiness as a healthy co-parenting relationship.  Because parallel parenting is normally employed when parents disagree with one another to the point that they cannot communicate effectively, those in parallel parenting arrangements should remember that their exes are their children’s parents and, for that reason alone, they deserve respect.  Keeping differences with one’s ex away from the children will open opportunities to move beyond divorce in the future. 

Whether one decides to co-parent or try out parallel parenting, the main concern should always be what is in the children’s best interests.  




Gary Frank & Jacinda Chen


At the Law Firm of Gary J. Frank P.C., both Gary Frank and attorney Hanna Juncaj are strong litigators and compassionate counselors. Gary Frank is a Family Law Attorney with over 30 years of experience as a litigator and mediator, which includes having acted in the capacity of a Judge Pro Tempore in the Maricopa County Superior Court; and serving on the Governor's Child Abuse Prevention Task Force. Hanna Juncaj is a highly-skilled attorney with a passion for Family Law and children's issues. We handle Family Law cases in the areas of divorce, custody (now called "Legal Decision-Making and Parenting Time), relocation (move-away), division of property, spousal and child support, modification and enforcement actions, grandparent and non-parent rights, and all other matters pertaining to families and children. If you are in need of a consultation, please do not hesitate to call our office at 602-383-3610; or you can contact us by email at gary.frank@azbar.org, or through our website at www.garyfranklaw.com.   We look forward to hearing from you.