Show Topic: Parenting Plans
This show aired on April 30, 2017, and was hosted by attorney David Enevoldsen. Topics included the basics of parenting plans, the history of presumptions in favor of Mothers under the Tender Years Doctrine, the fact that the current standard is the best interests of the child, and the fact that many still try to apply a system in which a mother should be the primary residential parent simply because she is a mother. David also discusses the specifics of what the court will look at when determining what is in the best interests of the child.
Headlines
Headlines on this show looked at domestic violence nuisance ordinances and the ACLU’s filing suit with Rosetta Watson against Maplewood, Missouri, a same-sex divorce murder suicide in Texas regarding Deborah and Millie Chance, and the apprehension and charging of Mark Muktarov after his threats of harm to police, court staff, and attorneys.
Did You Know
This show’s Did You Know looked at the use of baby cages that were hung out of apartment windows in an effort to get babies fresh air. The cages generally had a wire mesh chicken-coop-like frame and hung out of windows even in very tall apartment buildings.
Transcript
Announcer: The discussions and information provided in Family Law Report are intended to be general in nature and are not directed for any individual circumstances. No attorney client relationship is being formed through this programming. If you need legal advice, your particular circumstances can vary from what is presented here and you should seek the advice of an attorney licensed to practice in your state.
Announcer: Welcome to the Family Law Report, the show that explores issues related to marriage, divorce and children, hosted by David Enevoldsen, a practicing family law attorney in Arizona. Now, here’s your host.
David Enevoldsen: Hello everybody. Welcome to Family Law Report. I am your host David Enevoldsen, here with you every Sunday at noon on Independent Talk 1100 KFNX. On Family Law Report, we talk about all the current topics of family law and that can range from what’s going on in the political arena to just working through the basic nuts and bolts of a divorce or custody case. I am a practicing attorney. I work in family law. And when I say family law, I mean anything related to marriage, or divorce, fights over custody of the children, prenups, child support, grandparents’ rights, any of that sort of thing. I’m a partner at a law firm here in Arizona called Family Law Guys and we focus primarily on helping divorcing parents avoid getting screwed out of time with their kids. We have offices in the Phoenix area and while we don’t practice outside of Arizona, if you want to give us a call and schedule an appointment to talk about a case that you’ve got, or questions that you have about family law, you can do so by calling us at 480 565 8680, or you can check us out on our website at www.familylawguys.com.
On today’s show we are going to be talking about parenting time. And I’m joined by my co host, Shelley Rosas.
Shelley Rosas: Good morning.
David Enevoldsen: Did I say your name correctly?
Shelley Rosas: Rosas.
David Enevoldsen: Rosas. Okay.
Shelley Rosas: Every week.
David Enevoldsen: Well, I’m saying it correctly now.
Shelley Rosas: You are.
David Enevoldsen: Shelley works for my firm as well. She’s an associate there. She’s one of the other attorneys and so she does all the same stuff that I do. She works on divorces and custody cases and all that. So before we hit our parenting time, our parenting planned topic, we’re going to hit all our normal headlines.
In the press this week, there is news about a domestic violence nuisance suit. Or a case around a domestic violence nuisance suit in Missouri. There was a woman in Missouri, who just filed suit against the city of Maplewood. And this was all spawning from something that happened back in 2011. Her name was Rosetta Watson. She called the police four times on her boyfriend at the time. His named was Robert Hennings III. This was after he broke down the door, punched her in the face, choked her, hit her, shoved her, all the classic domestic violence stuff that you typically think of. Well, she called the police and eventually Hennings was arrested and later convicted of domestic assault about six months later.
But there was a city ordinance that said that the city can revoke a resident’s right to live in Maplewood, if the police are called more than twice in a six month period, related to domestic violence incidents. So she gets kicked out even though this guys was legitimately kicking in her door, beating the heck out of her and was later convicted of domestic violence.
Well, Watson … I don’t know how the connection came about, but the ACLU jumps into the picture here. Watson then just files suit against the city of Maplewood, stating that the ordinance basically violates the Violence Against Women Act, violates domestic violence victims’ rights to petition the government for redress of grievances, claims of that nature.
Now, interestingly, this isn’t just some localized thing. There are other municipalities out there that have very similar domestic violence call restrictions. In fact, we very recently had one very close to home. Up until last year Surprise in Arizona had a nuisance law that was very similar. It actually pressured landlords to evict tenants that called the police more than four times in a thirty day period, if it was related to domestic violence.
So in that particular situation, there was another … It was very similar. The ACLU jumped into it. Filed suit on behalf of a woman named Nancy Markham that had a very similar dynamic. She had been in an abusive situation, ended up calling the police, got a whole lot of pressure from the landlord, who’s getting pressure from the police, to evict her. And then, the city-then leader, decided to revoke the ordinance so that’s no longer in effect as of about a year ago. But apparently there’s a couple of other cities that have this. And Surprise up until recently was there as well.
Shelley Rosas: It’s interesting because it’s just one more reason for a woman or a man to not report abuse. It’s just one more step or one more … It’s almost oppression by the government. It bothers me a lot. I don’t know.
David Enevoldsen: And one of the problems you run into that I’ve seen in family law cases is, if somebody comes in with family court case and they’ve been a victim of domestic violence, typically they’re in an environment that’s very suppressive of everything. The domestic violence offender will typically try to isolate the person, make them feel like they’re nothing, cut off their support networks, make sure they don’t have a job, nowhere to go, nowhere to run to. They make them feel like they’re nothing.
Shelley Rosas: Make them feel crazy. Tell them they’re crazy. Try and convince everyone else they’re crazy.
David Enevoldsen: And make every feel normal. So in those situations, you’ve got someone who’s already having difficulty coming out and saying to anyone else, “Here’s what’s going on.” And now when you put an extra layer of, here’s what we’re going to do to chill that, that creates a problem.
And one of the things we see in the court room is often, oh well if this was happening all the time, why didn’t you call the police? I’ve seen that happen quite a few times. So now if you’ve got an extra layer of here’s another reason not to call the police.
And as far as I know, this isn’t going on in any of the other Arizona cities. Maybe it is. I don’t know. The only one knew of was Surprise, which has now revoked that ordinance so I don’t think that’s the case anymore. But it is a little concerning.
Shelley Rosas: And some laws are very supportive of victims. Where if there is actually an incident of domestic violence, it gives people a reason to actually break a lease and leave, so they’re not tied to the residence.
David Enevoldsen: Correct.
Shelley Rosas: And that can also be very protective.
David Enevoldsen: In other news, there was a shooting recently in Texas. It was a same sex couple: Deborah and Millie Chance. One of the two, I’m not really clear and I don’t think anybody was really clear who, had called 911 and said “She’s got a gun” and “My wife. I told her I want a divorce.” Then the call just ended. Police went to the house. They show up. They hear two gun shots, after which they force their way in. And when they get in there, they find that Deborah Chance was dead. She had been shot in the head. She was a 47 year old woman. And then Millie Chance was still alive but had a gun shot wound to the head as well, and she was 24. Quite an age disparity there. So they rushed Millie off to the hospital. Millie ends up dying and police currently think that Deborah shot Millie and then killed herself.
So here’s yet another incident, that, to me illustrates how highly volatile and emotional and crazy this family law universe can be. We’ve seen several incidents recently. In a couple of past shows, there was a guy, I forget his name, but was in Wisconsin. He goes into a bank and shoots up several people, including his wife’s divorce attorney and then kills himself, which presumably was the objective of that.
Shelley Rosas: Which is why we’ve changed office situations.
David Enevoldsen: There was another one recently in the press about, I think his name was Brittian Young in Maricopa County. He was going through a family matter, I think it was juvenile case. And he tries to jump up and arrest and he wanted to zip tie the judge’s hands over some theory that he needed to arrest her. So people get crazy emotional over this stuff.
There’s another story that came out recently in Navajo County in Arizona about a fellow named Mark Mooktera, who was arrested in Mesa after he had been in Navajo County. In Navajo County, he had a criminal case. And he threatened to blow up the police department. He said was going to attack officers’ families. My understanding is that he called the station and made all these threats. And so he was apprehended and they are now pressing all sorts of charges on him for doing those threats.
One of the things that we see in family court is people react so emotionally. I think these two stories are a little bit intertwined, because you can see situations where people actually go to the point of actually killing someone else, killing themselves, attacking judges. And so when you go out and make threats like this. When you say something like, “I’m going to harm somebody in the police department” or “Harm somebody in the courts” or “Harm the other party” or “Harm the attorneys”, since people are really doing that, the courts take it super seriously. And so you can be facing criminal charges. You can be facing repercussions within your family court case. So my strong recommendation is, even if you’re just frustrated and you’re saying something in jest, do not go out and make comments like that because it will come back and bite you.
Shelley Rosas: And definitely don’t post it on social media.
David Enevoldsen: Will don’t publish it in any manner. I mean don’t even just orally say it to any other parties. But definitely don’t go on Facebook and say, “I’m going to go bomb everybody.”
Shelley Rosas: But it happens all the time.
David Enevoldsen: It does happen all the time.
Shelley Rosas: It happens all the time.
David Enevoldsen: We’re going to take a quick break. I am attorney David Enevoldsen and I am joined by co host Shelly Rosas. And when we return we’re going to do our Did You Know and we’re going to be talking about parenting time. If you want to call in and ask any questions, you can do so at 602 277 KFNX. You’re tuned into Family Law Report on Independent Talk 1100 KFNX.
Speaker 8: Family Law Report is hosted by Family Law Guys, an Arizona family law firm. Family Law Report is dedicated to confronting difficult issues relating to marriage, divorce, and children. This can range anywhere from addressing the legalities and controversies of topics like gay marriage to current problems of the divorce system to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday at Family Law Report at noon on KFNX. If you want to know more or to schedule an appointment with David or another one of the Family Law Guys attorneys, call 480 565 8680. That’s 480 565 8680.
David Enevoldsen: Welcome back to Family Law Report. I am David Enevoldsen, an attorney with Family Law Guys, an Arizona law firm, here with you every Sunday at noon on Independent Talk 1100 KFNX. Joined today by my co host, Shelley Rosas, who works for my firm as well. If you want to reach out and schedule an appointment with us, Family Law Guys, you can do so at 480 565 8680, or you can check us out on our website at www.familylawguys.com. If you are listening and want to call in and ask me questions, share thoughts, tell me how incredible I am, just otherwise compliment me because, you know, I am pretty awesome, you can do so by calling 602 277 KFNX. And Shelley’s smirking and shaking her head.
Shelley Rosas: He is pretty awesome. I just can’t believe you said that on the radio.
David Enevoldsen: But I am.
Shelley Rosas: You are.
David Enevoldsen: So we’re going to be talking today about parenting time. Before we get to that, we are going to do our Did You Know? Did You Know is where we talk about some sort of family law trivia, some weird little interesting, often remnant of the past, or some fact about the present, statistics, that sort of thing. Today we’re going to be talking about baby cages. I find these fascinating. Baby cages are related to child care, which is pretty integral to the family law universe. And what a baby cage was, is … The way that I can envision it is if you imagine a swamp cooler. No, that’s not it, she’s pulling images off Google.
Shelley Rosas: I’m Googling baby cages and I’m basically getting the Evenflo Versatile Play Space yard.
David Enevoldsen: No no, that’s not it. So this is back from like the 20s. Imagine a swamp cooler hanging out of the side of your window. Except instead of being filled with all the AC type stuff, you’ve got basically an empty box with kind of chicken coop wire around it. And now you hang this out your window. You could be in a high rise apartment building or something and you’d basically stick your baby in there and then that way the baby can get fresh air. This was regularly done a long time ago. Now you’ve got the picture. Your thing says 1934 to something-
Shelley Rosas: 1934-1948.
David Enevoldsen: Well it became commercially available after a person named Emma Reid in Spokane, Washington, got a patent. It was called the “Portable Baby Cage.” And this was in 1922. And so from that period on for a couple decades it became in widespread use. There was this conventional wisdom that babies needed fresh air. And we were getting this sort of inner city issues, where children were in these high rises, kind of cooped up in these little tiny apartments like way up there, and so you wanted to get your baby exposed to this fresh air. Because there was this idea that it was going to make them healthy so they would prop up these baby cages, that became commercially available, stick the baby in there out the window, which sounds kind of terrifying. I think most of the parents I’ve talked to now, because you’re thinking the baby can plummet to its death. But from what I understand that never happened or at least there were no reported incidents of that happening.
Shelley Rosas: And doctors were actually, it says here, recommending parents in urban apartments regularly exposed their children to fresh air using these cages.
David Enevoldsen: Correct.
Shelley Rosas: Wow.
David Enevoldsen: And in fact before 1922, it had even been used non-commercially. There’s a story about in 1906, Eleanor Roosevelt rigged up what was basically a baby cage out her window in her townhouse in New York and she put her daughter Anna in there. And her neighbors saw it and freaked out and threatened to call the police on her. It got pretty crazy.
There was a book in 1920 called “The Healthcare of the Baby.” It has pictures. Describes it as the window crib. Has little drawings of what it would look like. There’s some reports that it originated in 1884. There was a book called “The Care and Feeding of Children” and in the book they don’t expressly describe it, but they talk a lot about this idea that the baby needs fresh air perpetually.
Here’s a quote from the book. It says: “Fresh air is required to renew and purify the blood. And this is just as necessary for health and growth as proper food. The appetite is improved, the digestion is better, the cheeks become red and all signs of health are seen.”
Now it’s not entirely clear when this stopped being used. It seems like it went on for several decades. There was a British video in 1953 that talks about the baby cage, kind of jokingly, if you Google it or check on YouTube. It’s out there. It’s kind of an entertaining watch.
But clearly it’s not the thing anymore. I think now we have a tendency to use those things you were looking at a few minutes ago.
Shelley Rosas: Yeah. The things you use to contain your child so you can actually take a shower.
David Enevoldsen: Yeah. That sort of thing.
Shelley Rosas: Or use the restroom and they can be safe for a few minutes.
David Enevoldsen: I found it an interesting piece of trivia. That’s your Did You Know for today. We used to have baby cages and don’t use them exactly the same way anymore.
Alright today’s show, we are talking about parenting time, which is obviously a staple to child issues. When I say parenting time, I’m saying “where is the child when.” That’s one of the key questions you’re looking at when you’re dealing with child-related matters, custody matters, that sort of thing, is where are you going to park the kid? Parenting plan can look something like this: a week on, week off. Child is with one parent for one week, child is with the other parent for the second week. There’s a million variations on how that can look. It could be one parent has the child every other weekend, or every weekend, or anything like that.
Shelley Rosas: Parents can pretty much make any arrangements that they like as long as they can agree.
David Enevoldsen: Yeah. And this is something we tell people all the time. As long as there’s not some serious fitness concern, meaning that one of the parents is not unfit to care for a child. The parent isn’t abusive or strung out on meth, or is throwing the kids in the car and driving around drunk. As long as you don’t have something as extreme as that, if you go to the court with a parenting plan that both the parents are agreeing to, then generally speaking the courts are going to sign off on that.
So if you don’t agree and you end up having to go to a trial, the judge will end up having to decide what the parenting climate is going to look like. And the standard, we’ll get into the standard here in a second, but the standard is very subjective and therefore can be something that nobody’s happy with. So you run a huge risk for going to trial on these particular issues. So if you can come to an agreement, and the agreement is reasonable and makes sense, you’re not subjecting your child to some dangerous situation, that’s almost always better.
But one of the things that we were talking about this before the show … One of the things that I run into all the time is people will make comments like, “I know that Arizona always prefers mothers” or “I know that Arizona always prefers fathers.” I think there’s a lot of confusion about how a parenting plan is actually constructed in the event that you have to run to the court and the court has to decide. And I think part of the reason for that is sort of the history of what we have done in jurisprudence related to parenting plans in the past.
So the most recent concept we’ve shifted away from, we don’t use this anymore, is called the Tender Years Doctrine, which has spun out into this idea that mom should be the primary caretaker, which is what a lot of people come to me and say, either as clients or as the other side say that “Well, I’m mom so I should have the kid” or she’s saying she’s mom and she won’t let the kid go for more than just a few hours at a time at the most or just not at all.
The Tender Years Doctrine was basically this idea that we had in jurisprudence. And for a long time the courts would push this same idea that when you have a young child, in particular, the young child should be with the mother. And so your parenting plan would often be structured particularly in the early years around parking the kid with mom and then giving dad just some kind of visitation.
Obviously that had a lot controversy that’s popped up. One of the main concerns that has come up in a lot of states is the idea that this was a violation of Equal Protection under the US Constitution because now you’re basically making a law that distinguishes on gender. So you’re saying that because you’re male, because you’re female, you inherently don’t have the same parenting rights. So all across the country that’s generally been as a legal matter shot down. Now what everyone looks at is what’s called Best Interest Standard, in which the courts will look at what is in the “best interest” of the child. So the standard is what’s best for the kid, not should mom have the kid since mom is mom or something different.
Now every state, I believe state, uses the Best Interest Standard, if not the vast majority of them certainly do. And most of the states have a list of criterion under statuary law that says, “Here’s all the things you’re going to take into account” when you’re looking at what is in the best interest of the child. With that said, and we’ll get into some details in a minute about what that means, it is still highly subjective. And from one case to another, you can have one judge look at it and a different judge look at the same facts, and come out with a very different result.
Shelley Rosas: And I think its really important to note here too, if you are faced with a situation where you and your soon to be ex cannot agree and you are going to take this to trial, and you’re going to put it in front of judge, and you’re going to have a third party make a decision, that the parties realize and take very seriously, that this is where the norms for the entire future of their children are going to lie. And once these are determined upfront, changing them is more difficult absent certain circumstances. So it’s really important, I believe, for parties to have really good education or really good representation going in to that trial because it’s going to be the first determination for those children. Parents need to take that very seriously for their children. If you’re going to spend money on any part of your case with a lawyer, I would highly recommend it be on your child issues and on the first time around.
David Enevoldsen: I agree. Especially early in the case.
Shelley Rosas: Absolutely.
David Enevoldsen: Either that or even sometimes when you’re just establishing just what the routine is.
Shelley Rosas: And just thinking about we, hypothetically speaking, see cases all the time that come in and I’m just going to give you a general pattern. We see cases all the time where there are some fitness issues and it’s really important that we plan right away, quick, we get the kids safe, number one. Try and get some structure in place. It might involve an order of protection first in one court and then move to family court and temporary orders or emergency orders or expedited orders. But that all happens strategically, quickly and in an order that makes sense. And that’s when you want to spend money. It’s get your kids safe first.
David Enevoldsen: That’s a good pitch for an attorney. We’re going to take a quick break. I am attorney David Enevoldsen. I am joined by my co host Shelley Rosas. When we come back we’re going to be talking more about the law around parenting time. If you want to call and ask any questions, you can do so at 602 277 KFNX. You are tuned into Family Law Report on Independent Talk 1100 KFNX.
Speaker 8: Family Law Report is hosted by Family Law Guys, an Arizona family law firm. Family Law Report is dedicated to confronting difficult issues relating to marriage, divorce, and children. This can range anywhere from addressing the legalities and controversies of topics like gay marriage to current problems of the divorce system to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday at Family Law Report at noon here on KFNX. If you want to know more or to schedule an appointment with David or another one of the Family Law Guys attorneys, call 480 565 8680. That’s 480 565 8680.
David Enevoldsen: Welcome back to Family Law Report. I am David Enevoldsen, an attorney with Family Law Guys, an Arizona law firm, here with you every Sunday at noon on Independent Talk 1100 KFNX. Joined today by my co host, Shelley Rosas, who works for Family Law Guys as well. If you want to reach out and schedule an appointment with our firm, Family Law Guys, you can do so at 480 565 8680, or you can check us out on our website at www.familylawguys.com. If you are listening and want to call in and ask me questions, share thoughts, you can do so by calling 602 277 KFNX.
And today we have been talking about parenting time. Now, when we went to break we were talking about the Best Interest Standard and the Tender Years Doctrine and how the Best Interest Standard has kind of replaced the Tender Years Doctrine and the Best Interest usually at least by legality, starts with sort of a default presumption of the idea that both parents should have an equal amount of time or at minimum that you’re trying to craft a parenting plan that is going to optimize the time with both parents. I think that is the basic standard.
Now, of course, that can shift if you have fitness issues, meaning one of the parents has some severe problem: strung out on meth, using drugs, using alcohol, sex abuse, child abuse, domestic violence, any of that sort of thing, will skew this equation pretty heavily. In a vacuum, the basic idea at least legally is that you’re supposed to look at what’s in the best interest of the children, considering all those factors you kind of start with a baseline that is in essence both parents should be sharing equally in time with the kid.
All of this said, I’ll come back to that in second and talk a little more. But in my experience, there’s still been quite a bit of cling to the Tender Years Doctrine in some courts and in many practitioners and certainly in some parties. And there are some recent things that I’ve seen kind of spin up in even some of the cases we’ve had. For example, there was an article in the Journal of Marriage and Family, entitled “Overnight Custody Arrangement: Attachment and Adjustment Among Very Young Children.” That’s an article from 2013. I’ve seen it cited all over the place. If you Google “attachment” and “young children” and “custody arrangements,” this thing pops up over and over again.
And basically it says that infants and toddlers should be with moms or else they develop these attachment problems. Now, there have been a number of articles since then that have come back and heavily criticized that that particular journal article. I’ve read through it. I haven’t looked at it recently but my personal impression was that it seemed to have some obvious problems. Correlational issues. The way they were looking at the data was kind of biased. They were just primarily just looking what was going on with single mothers who had parents that’d abandoned them. There are a number of problems that popped up and there’s some articles, like for example, “Maternal Attachment, Paternal Overnight Contact, and Very Young Children’s Adjustment: A comment on Tornello et al.” Tornello’s the name of one of the authors of one of the original article that have attacked this.
But this concept keeps popping up. I’ve even had this submitted as exhibits in cases by opposing parties and attorneys saying this is why mom should have more time. So even though we have this Best Interest Standard, we still keep, I feel, popping up with arguments about mom should have more time because mom is mom.
Another scenario we see that in often is the breastfeeding situation. Sometimes when you have a very young child, I have seen actual judges order, well the child is breastfeeding so the child should primarily be with mom and then dad should only have nominal parenting time until such time as that is over. That said, I’ve had other judges say things like, well you can freeze breast milk and hand that over to dad at any given point. So there’s nothing really precluding somebody from having an equal parenting plan because you can pump milk and freeze it. And then just pass that across.
And if that’s the only thing that’s really there, even if the child is bonding more with mom during this time, you’re not actually denying the same sort of bonding in a different way. Obviously dad isn’t breastfeeding but he’s still losing this time as sort of a critical developmental phase in the child’s life to bond with the child in the same way that mom is. And there’s been abundant studies saying that when you have the absence of a father in a child’s life, that can create all sorts of psychological problems.
Shelley Rosas: I think that’s super important to remember, and it’s one of things I appreciate about our practice and practicing with David, is that we’re on the same page about this issue. And all the current research and what I would like to see in every court room and every judge, have the most current information on this, is that the presumption is equal rights to both mother and father and how important that is to the child. That the child gets what’s in their best interests but presumptively time to bond with both parents.
David Enevoldsen: And most of the judges I’ve been in front of seem to take that basic stance.
Shelley Rosas: I’ve seen that too.
David Enevoldsen: I’ve seen parenting plans that are as simple as every other day you’re going switch, which sounds a little onerous to me, but I’ve seen that as a parenting plan. I’ve seen, and there’s a lot of different ways you can construct equal parenting plans. Things like, for example, there’s one called the “Two Two Three” or the “Five Two Two Five.”
Shelley Rosas: Explain what one of those are so they know.
David Enevoldsen: Yeah. So a “Two Two Three,” just to give you an example, when you have these numbers you’re looking at a two week cycle. And you’re looking at Parent A and Parent B. So Parent A has the first two days of the week, then it switches to Parent B for two days, then it switches to Parent A for three days. And now the next week, you’re going to rotate. So Parent B has two days, Parent A has the following two days, and Parent B has the last three days. So if you look at a two week cycle, you have a completely equal plan. So it operates on a two week cycle. That’s one of many variations you can have on an equal parenting plan.
A “Five Two Two Five” is kind the same thing, where you have five days with one parent, two days with the other parent, two days with the other parent, and then five days with the other parent. So you just keep alternating and the kid is bouncing back and forth. And then with a two week cycle, because you can’t evenly divide seven days, so you can’t make an equal plan out of that, you look at it as a two week cycle so you have fourteen days, if that makes sense. I know I’m throwing lots of numbers out.
Shelley Rosas: And I think I mentioned this last week but the lesser the conflict, the better the parents can get along and co-parent. The transitions are easier. The higher the conflict, and the less communications between the parties and the more difficult it is for the parties to communicate, the more it requires a third party or all communication in writing. The less transitions for the child the better. So sometimes the week on week off works better for higher conflict cases. Cause then the poor child doesn’t have to have the transition grief between parents every other day.
David Enevoldsen: Exactly. Kids soak up that.
Shelley Rosas: Oh yeah. They feel it.
David Enevoldsen: Some of the conventional wisdom is, when you have younger kids, you want more rapid shifts and times. So you want on the extreme end, it becomes a little onerous on the parent, but on the extreme end if you were capable of doing a day on day off, with each parent, that’s kind of better for the younger child. Because then the younger child is not away from any one of the two parents for too long. Administratively, that can create a lot of problems because if you have super high conflict parents, you’re having difficulty at exchanges, or it always results in huge arguments, that’s not good for the kid, because now all of a sudden you’re exposing them to all this conflict or denying one of the parents parenting time and therefore exposure of the child to that other parent because they’re sort of running around or hiding the kid or anything of that nature. So in those higher conflict situations, it’s often better to take a longer term to ensure there’s fewer problems, which end up impacting the kid.
One other thing I wanted to say real quick was about this prevalence of the idea that has clung on from the Tender Years Doctrine and this idea that mom should be the primary caretaker just because, is there’s a document floating around entitled, “The Superior Court of Arizona and Maricopa County Parenting Time Guidelines.” And I’ve had other attorneys actually reference this to me in support of the idea that mom is mom and therefore should have more parenting time. The document is from 2009 and it’s kind of interesting. It doesn’t actually say mom should be the primary caretaker just because she’s mom. But it talks about constructing a parenting plan for the parents. And the way that it’s listed out, basically talks like its describing visitation for a dad, because if you look at the time, it doesn’t ever add up to a full week.
So here’s an example: it breaks it down into different phases of childhood. It’ll say like Infant to 6 months. I’ll read to you: “Basic access. Ideally access should be brief but frequent through the week. For those parents whose access permits, access is recommended 3 times a week at 2 hours each, for the early months. As the child progresses to age of 6 months, an additional 4 hours should be added during the day on the weekend for those parents unable to have frequent access, which is recommended. The alternative would be a 4 access on the weekend.”
Now, that time, if you split that between the parents leaves a lot of time where the kid is not being watched. So the presumption seems to be that mom is the primary caretaker and we’re constructing a plan that dad is going to have some parenting time. And even on the end where this culminates. And the last section is “Thirteen Years Plus”, it says “Alternating weekends, one mid week overnight optional.” So again we’re not looking at an equal plan, we’re looking at this sort of presumption that one of the two parents in this equation, without them actually saying mom, is going to be the primary caretaker. It seems to be explicitly that mom is going to be the primary caretaker.
Shelley Rosas: And I’d say that most of the parenting plans that I’ve written have been written as to neither parent will be the primary residential parent. That the parents will share equal time with the child. So probably 80% of the time, those are the parenting plans that I have written.
David Enevoldsen: Well and I don’t see this particular document utilized or referenced very often. I have had a couple of attorneys cite to it in support of the idea that mom should be the primary caretaker. But I’ve never seen a judge personally reference it. I don’t know if the Superior Court in Maricopa is still embracing this or what the deal is, but it’s floating around out there and it kind of is a reflection of this presumption that mom is mom and therefore should have the kids.
We’re going to take another quick break. I am attorney David Enevoldsen joined by my co host Shelley Rosas. When we come back we’re going to be talking more about the law around parenting time. If you want to call and ask any questions, you can do so at 602 277 KFNX. You are tuned into Family Law Report on Independent Talk 1100 KFNX.
Speaker 8: Family Law Report is hosted by Family Law Guys, an Arizona family law firm. Family Law Report is dedicated to confronting difficult issues relating to marriage, divorce, and children. This can range anywhere from addressing the legalities and controversies of topics like gay marriage to current problems of the divorce system to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday at Family Law Report at noon here on KFNX. If you want to know more or to schedule an appointment with David or another one of the Family Law Guys attorneys, call 480 565 8680. That’s 480 565 8680.
David Enevoldsen: Welcome back to Family Law Report. I am David Enevoldsen your host, if I can say my own name, attorney with Family Law Guys, an Arizona law firm, here with you every Sunday at noon on Independent Talk 1100 KFNX. I’m joined today by my co host, Shelley Rosas, who works for the same firm. If you want to reach out and schedule an appointment with us, Family Law Guys, you can do so at 480 565 8680, or you can check us out on our website at www.familylawguys.com. If you are listening and want to call in and ask me questions, share thoughts, you can do so by calling 602 277 KFNX.
Now we’ve been talking today about parenting time and we’ve talked so far about the transition of the Tender Years Doctrine into the Best Interest Standard, how Tender Years Doctrine nonetheless seems to pragmatically cling on. And there’s a lot debate over the core idea of should a mom be the primary caretaker just because mom is mom. And as a side note, before the Tender Years Doctrine, if you go back several hundred years, under European or English Common Law or something, there used to be a presumption that fathers should be the primary caretaker even before this Tender Years Doctrine was in place, because there was this legal idea that a woman ceased to exist when she was married to a guy. And the husband or father, when the parties separated, was in a better position to care for the children because he would go out and earn money. He could hire a nanny. And mom didn’t have those abilities. So it used to be that there was the exact opposite presumption, that then shifted into the Tender Years Doctrine and is now into the Best Interest Standard, which is what every state I’m aware of looks at today.
Now, all of the states have a statute that will itemize out specific factors that the court is supposed to look at if the court has to make a decision about what’s in the best interest of the child when crafting a parenting plan. They all have factors that are pretty similar. They vary a little from state to state, but the basic concepts are the same.
So I’m going to talk a little bit about what we look at in Arizona specifically when the court is saying, “Here’s what’s in the best interests of the child.” Now its under ARS 25-403 Subsection A, a number I have burned into my brain, and there are 11 factors that the court has to look at. If we see an order that’s coming out of court after you’ve had a trial, most of the time those orders will itemize these 11 factors and say “Here’s the analysis of each of these factors and here’s why we’re constructing a parenting plan that looks the way that it does.”
Shelley Rosas: It’s not most of the time, it’s all of the time because it’s mandatory.
David Enevoldsen: Is it?
Shelley Rosas: Yes.
David Enevoldsen: Well I thought you could specifically request findings of fact and then it became mandatory.
Shelley Rosas: I thought on best interest you have to make findings.
David Enevoldsen: Well-
Shelley Rosas: I don’t know. Anyway. We see it all the time.
David Enevoldsen: At any rate, yes.
Shelley Rosas: A judge will make findings on best interest on each factor.
David Enevoldsen: I don’t recall a trial order that has not itemized each of these factors. Regardless, the concepts are the same. This is what the court is supposed to look at when crafting a parenting plan. And when we go into a trial, I will actually structure my examination of people that I’m putting on the stand around these. I’ll even expressly say it, because I want the judge to link up with what I’m saying, so this is kind of a trial tactic if you’re going in on your own. Or if you’re an attorney using it and you’re not doing it, you want the judge to take the information you are presenting and plop it into their order.
So I will actually say like for example, number one, the very first factor you’re supposed to look at is: the past, present, and potential future relationship between the parent and the child. So I will say, “I’ll put Mr. Client, Mrs. Client, I’m going to put you up on the stand and say, ‘Alright, ma’am, sir I’m going to ask you some questions about the past, present and potential future relationship of you and your child’ and then I’ll go on to ask questions like, are you bonded with you kid? What kinds of things do you do with your kid? That sort of thing.
And then I’ll just go down the list, because the idea is you want the judge to take your information and have the same format. You want to make life easy for the judge and make them see the stuff that they’re otherwise statutorily looking at. This is another thing that people representing themselves I think do effectively, is they kind of just kind of say whatever they think is relevant to the kid. And sometimes stuff that you’re looking at is not on this list.
So I’m going to run down this list sort of briefly so that you can all here it. Number 2 is the interaction in a relationship with the child, with the child’s parent or parents, the child’s siblings and any other person who may significantly affect the child’s best interest. There I tend to look at, is there a significant other that’s living in the house? Are there other kids in the house? Are there other kids from a different relationship? Is there some roommate? Something like that. And how does that impact the kid?
Number 3 is the child’s adjustment to home, school, and community. One of the things I think of, just to pick an extreme example, let’s say both parents, this is one that could skew an equal parenting plan. For example, let’s say that you have one parent living in Chandler and the kid has been adjusted there. Then all of sudden, the other parent decides “I’m going to move to Surprise.” Well it becomes very difficult to live in Surprise and get the kid to school in Chandler, where the kid has been going, or vice versa. So you’re going to have a very difficult time having an equal parenting plan there. Because you’re going to have to get up super early, take the kid off crazy early, go through insane traffic, get back to work, double back to work again to get the kid from school. It just becomes much more difficult. So that could shift an equal parenting plan when you’re looking at adjusting to home, school, and community.
Number 4 is the child is of a suitable age in maturity. The wishes of the child as to legal decision making and parenting time. This is an interesting one because the question always pops up, when is a child able to express his or her wishes? And there isn’t a hard and fast rule. There’s actual a name change case, there’s case law, that sort of implies that somewhere around 11-13 as an age, but doesn’t expressly say it. And that has been more or less my experience as it pops up then kind of in the early teenage years or a little bit after 10, maybe after 11, 12, 13 somewhere there is more of my experience. Has that been your experience as well?
Shelley Rosas: Yes. Absolutely.
David Enevoldsen: And so in those situations, if you have a 2 year old, they’re not going to say, “Who do you want to live with more?” But if you have a 16 year old. In fact, I had one case that really turned on a 17 year old saying he wanted to live with one parent. So it can have an impact.
Number 5 is the mental and physical health of all individuals involved. That’s a pretty broad one but there again, if you’re putting information into the parenting plan, saying they should have more exposure, equal exposure to one parent or here’s how we should make transitions or whatever you’re going to make arguments about that.
Number 6 is which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent. This is an interesting one because a lot of times, I think people will just start to slam in information about, oh he’s not letting me see the kid, she’s not letting me see the kid. And what I see this factor most relevant as is what we were talking about earlier. About changing the parenting plan based on the degree of conflict. So for example, if you’re having a super difficult time getting your kid from the other parent, then it makes sense to have fewer exchanges. So you might have a week on or week off sort of plan because then you’re only having one exchange. Or you might do things like one parent is going to pick up the child from school so you’re not having these interactions at one parent’s house or some mutual exchange point where two parents are in this perpetual conflict.
On the other hand, if you’re not having this a problem with this, you might look at some of the other stuff like, the mental health of the child is better because it’s an infant so we want more rapid exchanges. You might have a day on day off, sort of thing. So this, again, highly subjective. In all of the courts you’re going to run into are going to focus on different components of this. But these are still the statutory factors.
Number 7 is whether one parent intentionally misled the court to cause an unnecessarily delay to increase the cost of litigation and to persuade the court to give a legal decision making or parenting time preference to that parent. Have you had much experience with that being a dispositive factor in your cases?
Shelley Rosas: I’ve had one case where upon reflection, one parent absolutely worked hard to mislead the courts, but the courts’ really smart so it was never really a problem. But I did see it really work against that parent.
David Enevoldsen: I think the situations where I’ve personally seen it is more in the legal decision part of it, where people are trying to make choices about the child and if one is sort of stonewalling or making life difficult, the court might say it’s not feasible to have a joint legal decision making situation, so other parent you’re going to have final say.
Shelley Rosas: Being dishonest. Just any dishonesty in that area too when you’re speaking about the factors as a parent. Then, the other attorney calls it out and can show it. And the credibility is lost. The court can feel misled.
David Enevoldsen: And that can also spin into other things like attorneys fees.
Shelley Rosas: I always tell my clients, “You need to be 100% honest with me behind closed doors” because if I don’t have all the information, I can’t help you in the best way. So you gotta tell me everything.
David Enevoldsen: So we got 4 more factors on here. I want to make sure we get through these before the end of the show.
So Number 8 is whether there has been domestic violence or child abuse. So obviously that’s going to have a pretty significant impact if your child is being abused. You’re going to want to alter the equation so that’s not happening.
The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision making or parenting time. So if you have a situation that’s been super coercive and you’ve entered into a parenting agreement, you might not want to apply that.
Number 10 is whether a parent has taken the parent information program class. Now the court will require in Arizona, if you’re going through some sort of custody matter, that you go out and take some sort of parenting information program class, which is basically a 4 hour program that tries to make you aware of the fact that what you’re doing and the degree of conflict you have with the other parent can really impact things.
And the last one is if you’ve been convicted of falsely reporting an act of child abuse or neglect. And then that seems to have obvious repercussions in terms of crying child abuse on the other parent creates a big problem.
Alright, that is about all the time we have for today’s show. You’ve been listening to Family Law Report. I am David Enevoldsen, an attorney with Family Law Guys, an Arizona law firm. Here I’ve had with me co host Shelley Rosas. We’ve been talking about parenting time, all the ins and outs of that, the history of that, some of the presumptions you fight, and some of the legal presumptions that we have now. Hope you join us again next week on Sunday at noon for all of the latest on family law here on Independent Talk 1100 KFNX. If you want to check us out at out website, you can do so at our website www.familylawguys.com or you can call us at 480 565 8680. Thanks for listening.
Speaker 8: Family Law Report is hosted by Family Law Guys, an Arizona family law firm. Family Law Report is dedicated to confronting difficult issues relating to marriage, divorce, and children. This can range anywhere from addressing the legalities and controversies of topics like gay marriage to current problems of the divorce system to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday at Family Law Report at noon here on KFNX. If you want to know more or to schedule an appointment with David or another one of the Family Law Guys attorneys, call 480 565 8680. That’s 480 565 8680.