Wednesday, December 15, 2010

GRANDPARENTS' RIGHTS - Are You Being Deprived of Visitation With Your Grandchildren?

There is nothing more heartbreaking than a grandparent who is not allowed to have contact with the grandchildren, especially during the holidays.  The relationship between a child and his or her grandparent is a special kind of bond, one that cannot be replaced.  For a grandparent to be unfairly “cut out of the picture” can be devastating for both the grandparent and the child. 

Arizona law provides that grandparents do have a legal right to visitation with their grandchildren under certain circumstances.  Arizona Revised Statutes, Section 25-409 spells out the criteria that the courts use to determine whether grandparent visitation would be appropriate in a particular case; and the appellate courts have published cases which interpret the statute and provide guidance to help the trial judge make a decision.

There is a presumption that a fit parent’s decision to deny or limit visitation was made in the child’s best interests.  However, that presumption can be rebutted by evidence to the contrary.

A.R.S., Section 25-409(A) provides that “The superior court may grant the grandparents of the child reasonable visitation rights . . . on a finding that the visitation rights would be in the best interests of the child and any of the following is true:

1.                  The marriage of the parents of the child has been dissolved for at least three months.
2.                  A parent of the child has been deceased or has been missing for at least three months . . .
3.                  The child was born out of wedlock.

Section (C) of the statute provides that “In determining the child’s best interests the court shall consider all relevant factors, including:

1.                  The historical relationship, if any, between the child and person seeking visitation.
2.                  The motivation of the requesting party in seeking visitation.
3.                  The motivation of the person denying visitation.
4.                  The quantity of visitation time requested and the potential adverse impact that visitation will have on the child’s customary activities.
5.                  If one or both of the child’s parents are dead, the benefit in maintaining an extended family relationship.

To obtain court-ordered visitation over the objection of a parent, the grandparent must fall within one of the three categories listed in Section A of the statute, above; and the grandparent must be able to prove that visitation would be in the child’s best interests.  If the grandparent can demonstrate that he/she has maintained regular contact and has a loving and appropriate relationship with the child, then the prospect of obtaining visitation is greatly enhanced.  When one of the parents has died, the Court will give special consideration to protecting the relationship between the child and the deceased parent’s family. 

The Arizona courts have ruled that while a trial judge has considerable discretion in shaping a grandparent visitation order, the court is not free to simply second-guess the decision of a fit parent as to visitation rights.  Where a parent has agreed to allow some reasonable contact between the grandparents and the children – even if it is not as much time as the grandparents would like – the courts will usually not interfere with the parent’s decision.  On the other hand, where a parent refuses to allow any contact at all, the Court has the power to step in and order the parent to let the grandparents spend time with their grandchildren on a regularly scheduled basis.

These are difficult and complex cases.   If you are in need of a grandparents’ rights attorney – or if you are a parent who believes that contact with a grandparent would be potentially harmful to your child – then do not hesitate to contact the law firm of Gary J. Frank P.C. for a consultation.  You can reach us by telephone at 602-383-3610 or by email through our website at http://www.garyfranklaw.com/.   Contact us today.



    

GRANDPARENTS' RIGHTS - Are You Being Deprived of Visitation With Your Grandchildren?

There is nothing more heartbreaking than a grandparent who is not allowed to have contact with the grandchildren, especially during the holidays.  The relationship between a child and his or her grandparent is a special kind of bond, one that cannot be replaced.  For a grandparent to be unfairly “cut out of the picture” can be devastating for both the grandparent and the child. 

Arizona law provides that grandparents do have a legal right to visitation with their grandchildren under certain circumstances.  Arizona Revised Statutes, Section 25-409 spells out the criteria that the courts use to determine whether grandparent visitation would be appropriate in a particular case; and the appellate courts have published cases which interpret the statute and provide guidance to help the trial judge make a decision.

There is a presumption that a fit parent’s decision to deny or limit visitation was made in the child’s best interests.  However, that presumption can be rebutted by evidence to the contrary.

A.R.S., Section 25-409(A) provides that “The superior court may grant the grandparents of the child reasonable visitation rights . . . on a finding that the visitation rights would be in the best interests of the child and any of the following is true:

1.                  The marriage of the parents of the child has been dissolved for at least three months.
2.                  A parent of the child has been deceased or has been missing for at least three months . . .
3.                  The child was born out of wedlock.

Section (C) of the statute provides that “In determining the child’s best interests the court shall consider all relevant factors, including:

1.                  The historical relationship, if any, between the child and person seeking visitation.
2.                  The motivation of the requesting party in seeking visitation.
3.                  The motivation of the person denying visitation.
4.                  The quantity of visitation time requested and the potential adverse impact that visitation will have on the child’s customary activities.
5.                  If one or both of the child’s parents are dead, the benefit in maintaining an extended family relationship.

To obtain court-ordered visitation over the objection of a parent, the grandparent must fall within one of the three categories listed in Section A of the statute, above; and the grandparent must be able to prove that visitation would be in the child’s best interests.  If the grandparent can demonstrate that he/she has maintained regular contact and has a loving and appropriate relationship with the child, then the prospect of obtaining visitation is greatly enhanced.  When one of the parents has died, the Court will give special consideration to protecting the relationship between the child and the deceased parent’s family. 

The Arizona courts have ruled that while a trial judge has considerable discretion in shaping a grandparent visitation order, the court is not free to simply second-guess the decision of a fit parent as to visitation rights.  Where a parent has agreed to allow some reasonable contact between the grandparents and the children – even if it is not as much time as the grandparents would like – the courts will usually not interfere with the parent’s decision.  On the other hand, where a parent refuses to allow any contact at all, a judge has the power to step in and order the parent to let the grandparents spend time with their grandchildren on a regularly scheduled basis.


These are difficult and complex cases.   If you are in need of a grandparents’ rights attorney – or if you are a parent who believes that contact with a grandparent would be potentially harmful to your child – then do not hesitate to call the law firm of Gary J. Frank P.C. for a consultation.  You can reach us by telephone at 602-383-3610 or by email through our website at http://www.garyfranklaw.com/.   Contact us today.

Tuesday, December 7, 2010

WITH AN ATTORNEY, YOU HAVE AN ADVANTAGE IN FAMILY COURT -- If You Can't Afford One, There Are Options

Imagine walking up to bat in a baseball game – and you don’t know the rules.  You don’t know the difference between a “ball” and a “strike.”  You don’t know that three strikes is an “out,” or that three outs ends the “inning.”  You are aware that you’re supposed to swing at the pitch, but once you hit the ball, you don’t know which way to run.  No matter how hard you try or how athletic you are, the fact that you don’t know the rules of the game puts you at a huge disadvantage.

If you decide to represent yourself in a divorce, custody, or other Family Law case – especially if there is an attorney on the other side – then you may find yourself at a similar disadvantage, one that is hard to overcome. When you step into the courtroom as a litigant, you are expected to know the rules of procedure and the rules of evidence.  That you are a layman and not a lawyer is no excuse.  Your lack of knowledge can prevent you from being able to properly question a witness, or present evidence, or tell your side of the story in court.  In a matter involving custody or parenting time, the end-result can be devastating.

Attorneys go through years of schooling and training, followed by continuing education, in order to be able to understand the nuances of the law and the rules of court.  They know how the game is played.  This is why, in the courtroom, a person representing himself is no match for a trained-lawyer.

Obviously, hiring a qualified attorney in a Family Law case gives a party the best chance of obtaining a favorable outcome.  But what happens if you simply cannot afford ongoing legal representation?  Thankfully, there are a number of options:

1. LEGAL CONSULTATION WITH AN ATTORNEY:

If you cannot afford to hire an attorney to represent you on an ongoing basis in your Family Law dispute, then at least you may be able to pay a lawyer to provide a one-time legal consultation.  Much important information can be obtained from a one or two-hour meeting with a lawyer.  For instance, in a consultation at the law office of Gary J. Frank P.C, I will carefully listen to the client’s concerns and ask questions about the client’s family history, so that I can identify the issues that apply to that particular case.   Once I have sufficient background information, I will discuss the applicable law and help the client understand his or her legal rights.  Then I will talk about how the court process works, and I’ll give the client a “game plan” and tips on how to present his/her case in the best possible light. 

If you are representing yourself in a contested custody or other family law matter, then during the course of the case you may wish to return to the attorney’s office from time to time for additional consultations.  Although the attorney is not representing you in the legal action, additional consultations will provide you with updated information and a better understanding of what you need to do at various stages of the proceeding.  For someone who cannot afford an attorney, a legal consultation can be a useful tool to help navigate the difficult terrain of litigation.

2. LIMITED SCOPE REPRESENTATION:

In Arizona, a person who does not have the resources to retain an attorney on an ongoing basis in a Family Law litigation can now hire an attorney to perform a particular, and limited, task.  This is called Limited Scope Representation.  For instance, you might need an attorney to prepare a written motion or some other legal document for you; or appear and represent you at a single court hearing; or maybe attend and conduct a deposition.  This type of limited representation requires a written agreement, signed by both the party and the attorney, which describes in detail the task to be performed.  The attorney will file a Notice of Limited Scope Appearance with the court before performing the task.  When the task has been completed, the attorney will file a Notice of Withdrawal and the representation is terminated.  Thereafter, you will continue representing yourself.  If you need further assistance later on in the litigation, a new Limited Scope Agreement must be signed before the attorney can work on your behalf.

Of course, you can always obtain a consultation with an attorney at any time without having to sign a Limited Scope or an Attorney-Client Agreement

3. MEDIATION:

Mediation is the “peaceful path.”  It is a voluntary and confidential process in which the parties to a dispute sit down with a neutral 3rd party (the mediator) who helps them negotiate a settlement that is acceptable to everyone.  While litigation can be adversarial and expensive, mediation is more collaborative and less expensive.  So, it is worth a try.  If, after using their best efforts, the parties are unable to reach a settlement in mediation, then they can still litigate the matter in court.  Attempting to mediate a Family Law dispute is good alternative for everyone, but for someone who cannot afford an attorney, it may provide the best shot at a fair and inexpensive resolution of the problem.


 I have represented people, and provided strong advocacy, in all types of Family Law disputes for nearly thirty years.  For almost twenty of those years, I have acted as a Family Law Mediator, helping people to negotiate the terms of their own settlement.  I do my best to assist people who cannot afford to retain a full-time attorney by providing legal consultations and Limited Scope Representation.  If you are in need of help and would like to set up an appointment with an attorney, you can contact us by telephone at 602-383-3610 or through our web site at www.garyfranklaw.com.