Parents fighting for custody of their children often have questions, we’re here to answer some of the most common questions our family law attorneys routinely get asked during divorce & child custody deliberations.
Child custody laws in the state of Arizona can be confusing, by examining these questions and providing answers we hope to enable you to gain a better understanding of what you can expect if you are involved in a child custody dispute.
Parents involved in a child custody case understand how important it is to familiarize themselves with Arizona child custody statutes that will apply in your case. If you have any questions whatsoever, we encourage you to contact one of our Phoenix-area offices to schedule a consultation.
Our aim is to arm you with the necessary information so you can be confident when facing a child custody hearing.
Yes. Mediation (a form of alternative dispute resolution) is available in every family law case involving an issue regarding “child custody or parenting time.”
If you anticipate contentious custody or visitation issues in your divorce or break-up, then mediation may be a suitable way to resolve many disputes before trial. Mediation sessions may be scheduled through the court’s conciliation court, or through a private mediator.
Our child custody lawyers in Phoenix are happy to help you with this or any other child custody questions you may have.
No, they are not the same and here is the difference between the two. The parent who is awarded legal custody has the right to make important decisions about the child’s upbringing, including religious affiliation, education, healthcare provider, and so on. When it comes to the child’s living arrangements, the parent who is awarded physical custody has the rights and responsibilities necessary to manage every aspect of the child’s day-to-day care.
Yes. Times have indeed changed, and for the better. Today, fathers are more likely to succeed in getting custody of their children than ever before. More divorced parents enjoy joint custody arrangements and more fathers are being designated the primary residential parent.
Best Interests of the Child.
When ordering custody, the court always looks to what is in the best interests of the child. Fathers and mothers have an equal opportunity for custody, although statistically more women are awarded primary custody. Fewer fathers are being discriminated against than in the past, however, at least with regard to their presumed lack of child-rearing capabilities. The somewhat antiquated perception that mothers are always better caregivers than fathers is slowing crumbling away and is being replaced with a new understanding: Fathers can handle the job, too.
There was a time when many, if not most, fathers worked outside the home. And when one parent works outside the home, the other often cares for the children in the home. With current relationships, there is nothing unusual about a couple sharing child-rearing responsibilities equally because both are employed outside the home. Our “new normal” has become the sharing of parental responsibilities — perhaps because of necessity, or perhaps because of a lifestyle choice. That means that contemporary fathers are much more knowledgeable about child care and have real-life practical experience.
You can file a motion with the court seeking temporary orders that provide for the custody and support of a child before any trial is even scheduled, that is to say during or even before the divorce process begins. Temporary orders may address parenting time, child support, spousal maintenance, access to personal items, and many other aspects of a family law case. This interim relief is not a permanent solution and only applies while the case is pending.
Yes, if sole legal custody is appropriate. In Arizona, there is no legal presumption favoring one parent over the other. Meaning that the Court starts with the presumption that parents should have joint custody. With joint custody, both parents share the responsibility of major decision-making, as well as physical custody and control of the child.
However, if you believe joint custody is not appropriate, you can request sole custody, wherein one parent has final decision-making authority regarding medical, education and religious matters impacting the child. If you have concerns with the other parent regarding drug or alcohol abuse, child abuse, criminal history, domestic violence or mental health problems, it is probably appropriate to request sole custody of your child. The Court will then make a custody decision based on what is in the best interest of the child.
You can improve your chances of gaining custody by improving your parenting skills and your reliability. Begin making positive changes now and keep making improvements. More recent and more extensive involvement with your child can help balance out a past relationship with emotional distance or absenteeism. Remember that it is never too late to become a better parent.
Yes, in a high-conflict case there is a parenting coordinator to help you. Parents are required to implement a parenting plan, but sometimes their level of conflict is so intense and persistent that they cannot do their job. If conflict impedes the parents’ ability to make decisions in their child’s best interests, then Rule 74 of the Arizona Rules of Family Law Procedure allows involving a parenting coordinator in the case. By assisting with dispute resolution, the coordinator helps the parties put their parenting plan into action.
When removing your child from the state violates the custody order, yes there is a problem with that. Parental kidnapping occurs when one parent violates the custody order and seizes the child — illegally depriving the other parent of custody or visitation. Whether the child is taken away to a location within the state, or whether the child is taken out-of-state, the result is the same. The other parent’s rights to custody or visitation are unlawfully obstructed.
Yes, it is possible. A.R.S. § 25-408 requires that you seek the Arizona court’s permission before you relocate, which means you must also notify the other parent. As the custodial parent, you are under a custody order. You cannot simply decide to move away — the child remains under the continuing jurisdiction of the court until age 18 (or until emancipated). Furthermore, if you intend to relocate 100 miles away within the state of Arizona, then the other parent is entitled to 60 days advance notice. This is because your intended move directly affects the noncustodial parent’s access to the child.
Yes. Parental alienation occurs when a parent negatively influences the child toward the other parent. Child custody evaluators are trained to identify parental alienation as the negative manipulation of a child. Whether intentional or unintentional, the conduct can interfere with your child’s relationship with you. To deter alienation, you can include specific prohibitions in your parenting plan. Otherwise, seek court intervention to stop this activity by the other parent.
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Maybe. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) specifically addresses Arizona’s jurisdiction over your child. Our Superior Courts can exercise jurisdiction when:
Yes. Parents who are able to compromise on their custody arrangements, without turning the decision-making over to the judge, are strongly encouraged to do so. So long as your agreement is in the best interests of the children, you and the other parent may settle custody and access issues by private agreement.
Yes, the parent information course is mandatory in all cases in which the court is asked to determine matters of child custody, visitation, and child support. Furthermore, the court has discretion to order parental participation in the program in other cases, too, including a modification or enforcement of child support, custody or visitation.
No, your child does not have the right to decide which parent shall have custody. However, the child’s wishes may be considered by the court at any stage in the proceedings. The assigned judge does have discretion to interview the child, but this is not a common practice in our family courts. The judge may allow testimony from the parents on what they perceive their child’s wishes to be. More often than not, though, the judge will rely on the opinion of a mental health professional for guidance on what is in the child’s best interests.
Divorce can profoundly affect a child’s emotional development, so preparing the child for divorce is an important parenting issue. The child’s emotional well-being during and after the dissolution depends greatly on how the parents handle their divorce. To help ease the children’s transition into the new family relationship, read our helpful parenting suggestions for couples who are contemplating divorce.
No, it really isn’t sufficient. Although informal parenting arrangements can be helpful for some unmarried couples for a short while, such arrangements do nothing to resolve problems when there is a conflict. On the one hand, when paternity, custody, and parenting time have not yet been established, the instability and unpredictability of each parent’s access to the child can often be detrimental for everyone involved. On the other hand, a court-ordered parenting schedule benefits the mother, the father, and the child, and is enforceable. So the best approach is a parenting plan with a defined, predictable custody arrangement spelling out the terms of access both parents must abide by, which the court then orders and can enforce if necessary.
Arizona applies a co-parenting model over child custody. So when the parents seek joint custody, they are required by law to submit a written parenting plan to the court. The parenting plan provides a defined, predictable custody arrangement. It delineates the terms of access that both parents must abide by, and upon which the child will learn to depend. The plan is then made a part of the child custody orders issued by the court, rendering it fully enforceable by and against both parents.
Maybe. Under Rule 68 of the Arizona Rules of Family Law Procedure, the judge assigned to the case may order a custody evaluation whenever the parents are unable to reach agreement on custody. If a custody evaluation is ordered in your case, then the family court’s conciliation services will arrange for an assessment of what is in the child’s best interests to be conducted by a professional child custody evaluator.
A parenting conferences helps the judge determine what is in the best interests of the child with regards to child custody. The focus is on where the child will reside, how much time each parent will spend with the child, and how the important decisions and day-to-day decisions regarding the child will be made. In the conference, the court conciliator will identify the parties’ areas of agreement and disagreement over child custody and visitation issues. The conciliator may make recommendations believed to be in the child’s best interests.
In some cases, yes. Rule 10(E) of the Arizona Rules of Family Law Procedure allows for the appointment of attorneys for the child. The first is the “Best Interests Attorney” who represents the minor child’s best interests. The second is the “Child’s Attorney” who represents the child-client and is reasonably bound by the child’s directives and objectives.
- Grandson is 4yrs old and dad has parenting and every other weekend but grandson doesn’t want to go with dad because he says his dad is mean. No physical evidence of abuse but does say many things to child. They have joint custody, daughter has already filed modification to parenting time on her own now dad has a lawyer, she is a single mom she works at a cafe so money is tight And i want to know if there something as a grandma I can do.
Grandparents have a few options but third-party custody and/or visitation is difficult to win. The first option, you can pay for your son or daughter to hire a child custody attorney.
You can also hire an attorney and attempt to win third party custody rights. Typically, with both parents involved with the child, these are really difficult cases for grandparents, especially if the only complaint is that dad is mean. Court’s typically do not get involved in this type of thing absent serious allegation of misconduct.
- How do I Revoke guardianship of one grandparent and give guardianship to the other grandparent?
This can be a complicated situation. First, it must be determined if the Guardian was appointed by Consent or through a DCS proceeding. If the Guardian was appointed by Consent of the parent(s) then you can revoke the Guardianship and have a new Guardian appointed. If the Guardian was appointed through a DCS proceeding it is more involved and could take many possible paths. I recommend you connect with one of our guardianship attorneys to get the details on DCS proceedings.
- I do not know who my daughters biological father is, I recently got married and we are curious of the adoption process. Do we absolutely have to be married for one year? What does the process entail?
Not necessarily. If you and your spouse lived together with the child for a significant period of time prior to getting married then a motion can be filed requesting the Court waive the one-year requirement. As for not knowing who the child’s biological father is, you will need to provide notice to all persons that may be the father via personal service or publication and will also need to publish to “john doe” if there is no father listed on the child’s birth certificate. For a more detailed answer please contact our office to schedule a consultation.
- Hi, My mother past away last week and was supposedly married but she filed a divorce, Who get my 5 year old sister, her supposed husband is a crack head and was threaten my mother life so she was filling for sole custody and didn’t wish for the child to go to her father? Yes he is on birth certificate, just he is a danger to child, homeless, on drugs, threaten the lives of others.
The quick answer would be the biological father unless there had been some type prior court proceeding (for example – a termination of parental rights) that would have prevented him from having custody. If you would like to pursue custody you can either file in juvenile court for guardianship or perhaps in family court for in loco parentis. This situation is very complex and we recommend you contact an attorney.
- My ex-husband and I have had a reasonably amicable co-parenting relationship since our divorce in 2004. My ex-husband remarried in 2007(?) and had a second child with his wife in 2008. However, it wasn’t until very recently, May 2016 to be exact, when a minor incident that occurred between my son and his step-mother on my son’s 16th birthday which could have easily been resolved, instead got out of control due to both my son’s and his step-mom’s “pride”, that our co-parenting relationship has become strained.
Since that time, my ex-husband (and his wife) have been making unreasonable demands upon me for things which go against our court ‘parenting plan’; he is no longer effectively communicating important information to me nor responding to requests for communication as it pertains to our son’s medical needs, education, visitation. My ex-husband (and his wife) is now, in effect, using our son as a sounding-board. My ex-husband (and his wife) is telling our son half-truths, or rather spin-doctoring information, to make me seem as though I am not fulfilling my duties as a parent when I do not comply with his unreasonable demands, as well as when he does not want to comply with the parenting plan. My son is becoming frustrated, angry, and confused. My son is also having difficulty determining which information and who can be deemed as ‘trustworthy’. What can I do to help improve this situation?
Unfortunately, these things sometimes happen and it is not unusual that a new spouse is involved. A good idea is to review the parenting plan and prior orders and see if mediation is required before any changes can be made/filing a petition for modification with the court. Almost all custody agreements have a mediation clause. This will allow you to go to mediation and speak with him alone (without the new spouse) and the mediator.
Another option is trying to setup a meeting without his wife and try and discuss the issues with him. If progress does not occur then you would need to consider your court options. When a child is 16 and getting close to emancipation, court may not give you the result you want for the amount of time remaining for co-parenting but is always an option.
- I am currently undergoing a custody case in which the father has legal representation and I do not. Father had a relapse into drugs and alcohol, as well as multiple accounts of domestic violence. His attorney is reaching hard to find anything in my life to get the judge to side with Father. I believe the non-uniform interrogatories are an invasion of privacy. How do I answer them or legally decline to answer?
Discovery rules are governed by the Arizona Rules of Family Law Procedure and non-uniform interrogatories are permitted if they do not violate the rules. If one party feels they violate the rules or are used for harassment, then an objection can be filed but a legal basis must be cited for not responding. A party simply cannot ignore the request without legal cause.
- I called the hospital records department to ask if an acknowledgment of paternity form was signed when the birth certificate was filled out. They told me the dad had to call since it would have been signed by him and not me. We were not married / are not married and I don’t want to ask him if this was filled out. I am just trying to find out if paternity was ever established.
Signed Acknowledgement of Paternity forms are housed within the Hospital Paternity Program Database. The Hospital Paternity Program can be reached at 602-771-8181. The caller should be prepared to give her name, date of birth, social security number, and the child’s first and last name and date of birth. If there is a signed acknowledgement located for the child in question, it can be made available for printing, including a certified copy. Please contact us if you have general questions regarding child custody.
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Hi, this is Erica Merrell, and I’m the founder of Perfect Legal Video, and I am very excited to have with us today attorney Jenny Mihalovich. She is an attorney out of the Stewart Law Group in Phoenix, Arizona. And although she does everything that has to do with family law, she does have a really cool specialty. And we’re going to talk a little bit about a topic that she knows a lot about. And so that is going to be child support. And I want to thank you so much for joining us for your first time on the show, Jenny.
Thank you, Erica. I appreciate you having me here today. I’m looking forward to speaking with you.
Absolutely. We’re so excited. And I’d love for you just to tell me a little bit about what you were telling me earlier about your background, if you can put it together in a nutshell, and why you happen to have a much deeper well of knowledge than most people on the child support issue.
Of course, the first 16 years of my career, I was an assistant attorney general in the Division of Child Support Services, which is part of the attorney general’s office representing the Department of Economic Security, which at the federal level is similar to the Department of Health and Human Services. The attorney general’s office represents state agencies and through that represents all of the people of the state of Arizona. So in that capacity, for 16 years, I represented the state in child support proceedings, all aspects of child support proceedings from establishment of paternity establishment to child support orders, modification and enforcement of child support orders, initiating and responding to court orders or requests to establish court orders across state lines. And I did that for 16 years in that capacity. I did a lot of training, both in-house for attorney general staff as well as outside of the agency.
And about actually five years ago today, I left the attorney general’s office and started here at Stewart Law Group. Most private attorneys, even if they have spent some time in public domain. They don’t stay very long. They get trained and then they head out or they’re lifers. And so I’m kind of in a unicorn in that regard, in that I was there for a very long time and had sort of a more intimate knowledge than the average attorney has to sort of the behind the scenes and the goings on regarding child support.
Most currently, I sit on the committee and the work group that established the child support guidelines for the state of Arizona. And in that capacity, I also do trainings regarding current child support guidelines, as well as best practices for, for example, the state bar of Arizona.
And so I just have, you know, that narrow experience than maybe other attorneys who’ve been practicing for 21 years, like I have, may have 21 years of, you know, a wide breadth of topics. I have 16 years of a very focused topic that really comes in handy for for both my clients, but also for my colleagues, because they still do a lot of trainings outside of the office for other attorneys on this issue.
It sounds like they are lucky to have you, because that is a huge amount of experience. So I have told you a little bit about myself. I went through a divorce last year, and I just remember the first time I sat down with my family law attorney that was going to help me through that kind of a sad journey that people go through. But for some people, it’s a really happy journey once they’re done and certainly a reason to celebrate. You know, and I, I know there there are so many questions when people sit down and so many of us that are not attorneys, especially in the specialty, you know, we feel stupid because you might have been taken by surprise or maybe knew it was coming for a long time. But, you know, there’s a lot of secrets and sometimes you don’t know what your assets are and what income is coming in the household. And a lot of there’s a lot of surprises. And I know one of the first worries that people have and maybe why they take a while to actually take steps to go toward a divorce is they’re just not sure how they’re going to support themselves and their children. And, you know, so child support is a way for the the person that is not making as much to still be able to live after the divorce is final.
And I’m just wondering if you can give us an idea about, you know, child support and and really how it’s calculated. And I know it might be even different out there in Arizona than it is in other places.
It is different potentially state by state. There’s really two predominant models. One is just a percentage of income of the pain parent that’s fallen into disfavor over the 20 plus years that I’ve been doing this in. In Arizona, we use what’s called the income shares model, and that’s the the most widely used and accepted model. What that means is that the parents are responsible for children financially on a pro-rata basis, in proportion to their percentage of the combined income. The idea is that the child or children should be in the same position as they would have been in if the parents had remained together or lived in the same household. And people who generally live in the same household pool their resources. So if you have, you know, dad making twenty dollars an hour and mom making twenty dollars an hour, then theoretically they’re each paying 50 percent of the expenses, whether it’s the mortgage or food for kids.
If you have one person making forty dollars an hour and the other one making twenty, then presumably that person is paying twice as much of the expenses. Now, that’s not always true, but that’s the presumption that underlies the income shares model, is that the parents’ contributions should sort of match their proportionate or pro-rate of the share.
And, you know, and that makes a lot of sense, it seems like it’s a fair way to disperse the expenses of having a child.
I think it is. I mean, I’ve been doing this for twenty-one years and I’ve heard of a lot of different proposals from a lot of different interest groups on ways to change it or ways to make it better, because there are certain flaws in the system, especially when you start talking about people who have children with multiple other people. This particular model, it doesn’t address that very well. And so people have tried to come up with other ways to do it that would maybe embrace more of that sort of new family that a lot of people have. And they just I haven’t seen a good working model. So this model is gross income, not net income because there’s a lot of fiddling that can be done with net income. And the only way to eliminate that is to just use gross. And it’s a very, very strict formula. It is an Excel spreadsheet. So it only takes numbers. It doesn’t take words you don’t get to say, but. But it’s just ten dollars an hour. Twenty dollars an hour, 50000 a year. You know, you can put it in monthly, you can put it in weekly, or you can put it in annually and it shoots out a number at the end. And the idea is that children in the same position should be treated the same.
So if the children in this household have a mom that makes twenty dollars an hour and a dad that makes twenty dollars an hour, this is what the child support is going to be. And that any other house on the block with that same financial distribution would have the exact same child support. It really is. I mean, a lot of people will say that it’s failing, but it really is attempting to make things as fair and is equitable as possible under the circumstances.
Right. I mean, and I like to that it’s not about trying to gouge the other person or, you know, get back at them for something that had to do, you know, had nothing to do with the child’s you know, their relationship is totally taken out of it. Like you said, it’s numbers. There’s nothing else. But I do have a tricky question for you, because there are people out there that may not have a job there. Their job may have been solely to take care of the house and the child, which is a full-time job and a lot of cases. And sure, there’s plenty of working parents that also run their households. Maybe not well, because there’s a lot of juggling to do.
So you’re almost lucky if you can afford to have a parent that does take care of that stuff. And certainly if you hired someone to do all that, it would cost you upwards of 50 to one hundred thousand dollars a year. I think Oprah might have said, well, what is it? What do you have to say about it? If someone doesn’t have a job and they’re getting divorced and there are children? You know what happens with the child support calculation, man?
Well, first, I would say those are the kind of cases where you want to have an attorney because there are those gray areas, you know, I would say the black and white or the people that work for someone else and they get a paycheck and they get a W-2 and, you know, they punch their clock 40 hours a week from there is a whole spectrum. The other end of the spectrum being, like you said, someone who’s unemployed. But there is all manner of things in the middle of that spectrum, self-employed people or people who are work as independent contractors or what we call ten ninety nine employees.
What the court does with that or what the parties do to try to stipulate in that situation really varies, because, for example, if you have really young children where the cost of child care has just gone through the roof, even if they have a college degree, if they went back to work, they’d be paying the same amount that they’re netting. And in that case, it may work to everyone’s advantage to just use zero income, because otherwise, they’re just working to pay the babysitter. However, in Arizona, we have a presumption if you’re over the age of 18 and you aren’t on disability or incarcerated, you are presumed to be able to work a 40-hour workweek at no less than our state minimum wage, which at present is twelve dollars and fifty cents or 15 cents an hour. So oftentimes for especially a stay-at-home mom or a stay-at-home dad and the children are school-aged.
So that sort of crushing childcare isn’t going to be an issue. They’re going to be attributed income that at the very least will be minimum wage. I always tell my clients if I were to decide to be a stay-at-home mom, they’re not going to attribute me minimum wage.
They’re going to attribute me the earnings of an attorney with 21 years of experience. So there’s no short answer to that question. And that’s definitely one of the areas that when people are getting divorced and in Arizona, we have a very robust self-service access to justice system to try to help people who can’t afford attorneys represent themselves. But this is one of the areas where having an attorney will really help you to navigate what the different options are, whether you’re going to settle the case or whether you’re going to have to go before the judge and make your argument.
Yes, I definitely heard that, too, and I know that I’ve heard of cases where, you know, they used to make 60, 70, 80, 90 thousand dollars a year. It has not been the case for seven or eight years yet. When they go through the divorce, they’re still getting calculated in on what they used to make when they were a full-time professional. Do you see that quite often?
We do. We do. And, you know, there’s pros and cons to that. It’s, you know, one bad apple spoils it for the whole bunch. And what has happened over time is people have, you know, either in a spirit of animosity because of the divorce or because they don’t feel like they’re getting their just desserts in other areas financial aspects will try to use child support as a way to line their pockets and whether that means not working when they have the ability to work or underemployed themselves. And so we’ve really created a system that presumes that you are going to be able to make that income that you used to make seven or eight years ago. And it’s up to you. You have the burden of proving that that’s not true any longer. And one of the things to think about, because I represent both sides, I represent the paying parent and I represent the nonpaying parents so I can make our good arguments on both sides of the coin is that, you know, personal lifestyle choices of one person are not the financial responsibility of the other person. So, for example, a lot of times I will see predominantly in moms. I don’t like to be sort of gender stereotyping, but it’s predominantly moms who will marry someone else of considerable wealth or enough wealth where they can stay home and now want to be attributed zero income or minimum wage, even though they left a job paying, say, eighty thousand dollars a year. And by doing that, that independent life choice to be a stay-at-home parent now with the second family, that the prior other parent is saying, look, that increases my child, support your decision to stay home, all yours, do it. Enjoy. Go forth and prosper. But I shouldn’t have to pay what is essentially a financial penalty for your choice that I had no say in. That’s really different than a situation where parties that were a couple made the decision together for mom to stay home. And that payer was part of that decision and now wants to say, oh, that, you know, she could get income young here, that she’s been at home for five years. I changed my mind. I want her to go to work.
So those two situations are treated potentially differently in the eyes of the court, even though really the net effect is the same. Right, a mom who’s staying home with her kids. So there really is a wide amount of people think of it as being a very narrow issue that doesn’t have a lot of meat to it. But as you can see there, there are tons of little permeation and little left and right turns that can make two cases that on the outside appear to be very similar to be very dissimilar. And, you know, and that is so true, and that is why I think it’s super important for someone to get an attorney if they’re going through a divorce, because I think oftentimes people listen to what happened to their neighbor or their family member or even what they see on TV, and they think, oh, well, I can’t do this because of X, Y, Z.
None of that is really based on your reality. There might be bits and pieces that are similar, like you said, but everybody has a unique situation and there are different strategies to handle each situation.
So, I mean, I find that, you know, what you’re saying is, you know, really hitting the nail right on the head because, you know, it is different. And you need to understand, like, what your situation is and how you can get the best outcome for yourself and your child. So I have an interesting question for you. What if you have equal parenting time? Does that mean that there’s no child support?
It can mean that it really just depends on the facts and circumstances of the case. For example, in Arizona, we use an income shares model. And so arguably, yes, if you have equal parenting time and you have equal income, you’re not going to pay child support.
But most of the time, people carry private health insurance, for example. And if one person’s carrying private health insurance for the child or the children, even though the parties have equal parenting time and equal incomes, the one parent is shouldering this financial burden that would have to be redistributed between the parties. In other circumstances, because of its an income shares model, if there is a discrepancy in income, then you may still have a child support order, even though you have equal parenting time. And the reason for that is that you don’t want or of the state in creating our guidelines, didn’t want to have a situation where a child was, for example, living in poverty with one parent and, you know, living in a much more higher socioeconomic status lifestyle with the other parent. And so our state legislature and many of the others that have the income shares model believe that, you know, some transfer of those financial resources for the benefit of the children is necessary, even when you have an equal parenting time situation. So I would say a lot of cases have no child support when they have equal parenting time. But there are a lot of cases that do have a child support order, even though there are equal parenting time orders in place.
Yeah, I mean, and that it makes a lot of sense, I mean, like you’re saying that it’s really about keeping as much the same for the child as possible. And, you know, it can’t it’s already hard enough on the children that have to go back and forth for them to have such a varying degree of of change and environment when they go from one house to the other. So, I mean, I’m glad that they seem to think of everything when they come up with these. So that’s really great. So let me ask you this is this is definitely an interesting question. I remember a friend of mine being worried about getting married to a gentleman who’s a financial adviser, and I guess he did really well. And she had been divorced for a long time from her husband, but had really been putting off marrying this person for six years because she thought it was going to affect her child support because of what her spouse makes. So, I mean, is that a thing?
It can, but it’s going to be an unusual circumstance in your general day to day when you have parents who separate or maybe they were never together in the first place. They just happen to have a child together. They are free to marry and go on and have full and successful full lives with new partners and the new partners. Wealth is not going to impact their child support because the legal obligation for support is only between the parents.
And so that, you know, if you have a mom who’s a teacher and so she makes forty thousand dollars as a teacher, she could marry a millionaire. And still, for purposes of child support, they’re just going to use her forty thousand dollars a year income, because the idea behind the income sharing model is if the child or children should be in the same position as they would have been in if the parents had stayed together. And so that that third parties income wouldn’t come into play. Where it comes into play is when you have a situation where the remarried spouse has a different lifestyle now than they would have had otherwise.
So say that teacher decides to stop teaching and just be a stay-at-home mom or to be a housewife, then you could have a situation where the court has a couple of options. They can attribute her the income of her prior employment and say, OK, well, you used to be a teacher, you start teaching. But for purposes of child support, we’re going to use that income as a placeholder to calculate the child support. Or they can what’s called a tribute. You know, what is essentially gift income. It is the expense that that spouse is bearing on your behalf.
So, you know, whether it’s a mortgage or rent payment, utilities, that kind of thing, that can be used by the court as a benchmark. And it’s not saying, oh, we’re taking your new spouses, you know, a million dollars a year and attributing that to you as income.
What the court is saying is you are living with no expense because someone else is covering those expenses on your behalf. And therefore, as a placeholder for purposes of calculating child support, we’re going to assign value to those things and attribute to you as income. And so a lot of people liken that to using their new spouse’s income, but that’s not actually what’s happening. And that, like I said, only happens in an instance where someone is not employed, where they’re employed. The court is going to use their own personal income.
I mean, that’s great to know, and again, there they are taking care of the children, but also making sure that everything is distributed fairly because, you know, you’re distributing the expenses, you’re distributing, you know, the liabilities and the income. And so it’s it is really important that they look at those changes. But also they’re not punishing someone for moving on and having a good life later, which is really great. We all have heard of another situation where everything gets settled by the court and you have the amount of child support that you’re supposed to be paying or you’re supposed to be receiving. And then something happens. I mean, it could be, you know, the fact that they’re not that they don’t pay their child support all of a sudden. And it could be for many reasons.
Sometimes this is of no reason of their own. There’s a pandemic. There was a pandemic. And, you know, some people lost their jobs or became underemployed because of that and they couldn’t pay well. But there are also people that are spiteful and they’ll be late and they’ll be slow.
And, you know, they’ll go spend money in other areas and not have money to pay their child support. I mean, there’s a lot of reasons somebody wouldn’t do that. But still, the person that relies on that child support to pay the bills, to keep the lifestyle the same for the child is at a loss and under a lot of stress. And, you know, there’s a lot of terrible repercussions to that. So what happens when that when someone does it pay their child support? You know, how can you get your money?
There’s quite a few options available to an obligation to enforce the obligation. And even in pandemic-type situations where it is understandable that payments are not being made, you still want to protect your interests. You still want to protect the money that’s due and owing to you. Child support is a very unique thing.
We got rid of debtors’ prisons back in the eighteen hundreds. And so child support is unique in that it’s the only debt that you can go to jail for not paying. And when I say that to people, I often get a snarky response.
That’s not true. You can go to jail when you don’t pay your taxes.
Well, that’s different. That’s a criminal offense if you don’t pay your taxes. So you’re not going to prison because you didn’t pay a debt. You’re going to prison because you violated the criminal code by not paying your taxes.
Child support is the only debt that you can go to jail for not paying in terms of a debt hierarchy, whether it’s someone in bankruptcy or whether it’s just someone sitting at the end of the month with their little pool of money and what they’re going to pay, it is the top debt.
The only thing that supersedes it is tax debt. And so you have to pay your child support first. Child support in Arizona does not expire. It does not have a statute of limitations. You can’t outrun it. I have had people call me whose children are in their 40s saying I just got this notice and it says, I owe all this money. I can’t possibly all this money. My child is forty-two, when in fact, you can still own it. So there are a lot of remedies available to get someone to pay the child support.
And sometimes you’re just trying to protect what’s owed to you to get a judgment, to make sure everybody’s on the same page of how much that is owed. And other times you’re trying to get the piece of a pie. So, for example, in a bankruptcy situation, you want to make sure that your portion is protected. The other unique thing about child support is it’s not dischargeable in bankruptcy. And so as long as the appropriate notices are filed with the bankruptcy courts, you can’t get rid of child support debt by trying to claim a bankruptcy, like you can for your other debts. So we definitely encourage people to talk to attorneys and to, you know, utilize the resources that are out there to protect that financial interest. And while attorneys may cost a little money on the front end, you know, if they’re protecting a long-term interest and like I said, it never expires, it’s worth it to protect it on the back end. I mean, that makes a lot of sense.
And, you know, it is funny, I tell the story a lot. I did get a call from someone that was sitting in debtor’s jail for his child support, and it was an old manager that I hadn’t seen for like eight years, had no relationship with. But he was just sitting in jail calling every single person in his phone. And, you know, a lot of times I hear that they put him in jail and miraculously the money shows up. I have some stories from my time with the attorney general’s office that you would just you would never believe. When I was at the attorney general’s office, the agency we represented was called the Division of Child Support Enforcement. The name has been changed to the division of Child Support Services. So their focus is a little different now.
But when I was there, the hard hammer of the law came down. And a perfect example is a hearing that I did where a gentleman brought his infant child that was with someone else, with a new partner in a baby carrier, thinking, you know, the sheriff can’t take me away if I’ve got this baby carrier. Right. So we had the hearing and the whole time, you know, oh, I couldn’t pay it because I had this new baby. And, you know, they get to lecture that, you know, your old baby is just as important as your new baby.
You know, how much can you pay? I can’t pay anything. I can’t I don’t have any money. I used it all to spend on diapers, blah, blah, blah. And the court has a button. You can’t see it. The clerk hits the button, the sheriff’s office comes in and they come in the back of the courtroom and they’ve got their handcuffs and they’re handcuffing the guy. And they had called someone in to take the baby and it was like his mother or something. And when she got there and took the baby out of the car carrier, there was nine thousand dollars under the baby’s butt in the car carrier.
So, I mean, the things that people will do, you know, like you said, there’s often money. There were a number of judicial officers back in the day that would tell litigants that were paying, parents that hadn’t paid. They had to take their wallet out and line their credit cards up on the courts, the bench where the court is there, and flip them over and call the one 800 number on the back on the record while it was being recorded and find out what the available balance was and get a cash advance on each one. And that was the total that they had to pay to stay out of jail.
So, yeah, I can see your situation, you know, that being something here in Maricopa County that would happen where they said you need to tap into your resources. You know, it’s not up to the other parent to take out a loan to support the children because you didn’t. It’s up to you to find loans, to get money, to support the children. So that does happen. There are a lot of creative thinking judicial officers out there that will suggest those sorts of things to people. And I think that’s great. And they should write a book about it and make the person read it before the hearing.
And that’s another interesting point that you bring up the judge saying, well, listen, you still have to pay for your first baby. I have heard that if you have additional children from another marriage, it doesn’t take away the child support or lower the child support for the first child that you had or the first two or. I’m not sure how it gets disbursed, but is that true in Arizona?
That’s not actually accurate. It can be accurate. It’s really going to depend. I will tell you that in my time as a public attorney, my record was one gentleman that had 53 children with 53 different women. And that’s a situation that is is very difficult under the guidelines of how to handle.
And some ways it’s actually easier, though, than the situation where you just have, for example, maybe one paying parent that has a set of children with parent B and a set of children with parent A. See, that’s almost harder because when you have 53, you just go like hands in the air, like what are we going to do? At what point? You know, we’ve just lost complete control. But when you have maybe one child with two different people or two children with two different people, it’s a much more difficult problem to solve because you can’t throw your hands up in the air and you can’t just say, oh, this is a lost cause.
And so in Arizona, we have what’s called a self-support reserve test. It’s an amount of money that we have to leave the payer. And there’s a spectrum. You know, it could be that you have a situation where when you apply that self-support reserve test, there’s, you know, a thousand dollars left for child support. And if that payer has two kids, each gets five hundred. If they have four. Then they each get 250, you know, and so it can be that that first child’s child support is lowered by the paying parent. Having subsequent children with other people, but it’s not necessarily going to happen.
It just really depends on how many other people they have to pay and what their income resources are in the first place. But the idea, at least in Arizona, is to treat all the children equally. At the end of the day, if you have multiple parents with multiple children, with multiple different people they want the children to all be in the same position. And if that means that everybody only gets a little tiny bit, that’s definitely better than saying the first one gets all of it and the ones after getting none because it’s not their fault.
Well, exactly. And I cannot believe I’ve ever heard of a worse situation than what you said. I mean, I know somebody who became like one of the top scientists in his field, but he came out of absolutely nothing because his dad had something like eight children or seven children with the mom that he was married to. And then he had another nine children with his mistress. And so all the children of the mistress ended up going through adoption agencies and having to live some pretty hellish lives if they didn’t get adopted.
And, you know, he just came out of the ashes and turned into, you know, just a really, you know, brilliant person that now helps cure cancer and sees the stars and all that stuff that scientists do. He’s a big part of that. But, you know, a lot of his siblings did not fare so well, criminal records and illegitimate children and, you know, just living in squalor. Yeah. So you just so know. And there was nothing they could really do for all those children.
He just, you know, really worked his way out of there. I don’t know where he got the inspiration, but, you know, good things do happen to people, even in rough situations. So I guess let’s hope for the best for those 53 or 54 children.
Yeah, there there was one missing that wasn’t there, so yeah, it is a complex problem. And in fact, we are just got done updating our child support guidelines here in Arizona. And a new set of guidelines will go into effect January 1st 2022. So in like six months. And that was really one of the hurdles that we were really struggling with, because this income shares model, like I said, doesn’t. It’s really hard in application when you have to sit, you, you know.
Yeah. To parenting situations where you didn’t stay with the other parent because the model wasn’t really built for that. So it does become difficult. And like I said, it’s almost harder in the smaller number of children cases because, you know, you feel like you should be able to do it in a way that’s fair and equitable versus the situations where you have like 10, 12 kids with all different parents, where you kind of walk into this situation thinking this square peg is not ever going to fit in that round hole when there’s just two, two sets of families or, you know, three sets of families.
Yet the logical side of your brain is like, OK, there should be a way to do this. There should be a way to make this fair and equitable. And we try, you know, like I said, a lot of people say we’re probably failing, but we are definitely trying to do create.
And the court is trying to create a fair and equitable situation, not necessarily from the parent’s perspective, but definitely from the child’s perspective, that it’s fair and equitable. And, you know, and I think that’s great. So what if there is what seems to be a short term or a long term situation where a parent can’t pay the child support and it’s, you know, something like they got injured and they have to heal before they can go back to work, or sometimes people get even more serious health issues where they can’t even go back to work.
Sometimes they just lose their job, their high-paying job, and it takes them a while to get back to that level if they ever get back to that level at all. Can you give us an example of what you need to do if a modification is needed?
Yes. In Arizona, we do have the capacity to do temporary modifications in Arizona. And during the Covid pandemic, the court was entertaining those on it on an expedited basis. But for the most part, in Arizona, if you do not have what’s called a substantial and continuing change of circumstance, you’re not going to be eligible for a modification. It’s just going to be a debt that you’re going to owe. So say, for example, you know, you work in a capacity that requires you to be on your feet. You’re a hairdresser or you’re a waitress or a waiter, and you break your foot and you’ve got three months where you’re not going to be able to work in that capacity because you can’t be on your feet. The court is not going to modify your order. You know, you’re going to have a debt for those three months because you weren’t able to pay it because you’re not working.
And when you get back to work, you’re going to be expected to pay it back at that time. The enforcement remedies and enforcement mechanisms aren’t going to kick in for situations like that. They’re going to say, you know, similar to maybe your credit card company or maybe your landlord, like, oh, I see you’re in a bad situation. You know, when you get back on your feet, figuratively, literally, you know, then you start paying it back. The difference is if you have a more long-term situation. An example I often use when I’m teaching new attorneys is years ago I had a situation where a paying parent, his job was that he was a cameraman for one of our local news affiliates here. And so, you know, the five o’clock news, six o’clock news, you know, ten o’clock news. He was there operating the camera and, you know, somewhere in 2003, 2004. This particular station went to all automated cameras, meaning that there wasn’t a person holding the camera anymore. It was a computer-operated sort of voice activated where it was all happening from a booth. And there was a director and there wasn’t going to be anyone holding a camera. And so this gentleman was laid off and there was no hope that he would ever be able to get a job in the field in which he was trained in. You know, he was in his mid-40s, and the profession that he chose was obsolete. And, yes, he could go back to school or go back to some sort of retraining, but that was going to take some time.
We have a nuclear power plant here in Arizona. I had a case where someone got fired from the nuclear power plant. Well, we only have one. So if they fire you, you don’t have anywhere else to go now. Could this person have gone to California where they have? Yes, but their children are here. And so, you know, moving to the nuclear power plant in northern California wasn’t really an option. And so in situations like that, you can potentially qualify for a modification of your child support in the same way as if you have an increase in income that someone may be entitled to a change in the amount. What is important in Arizona is that you show a substantial and continuing change of circumstance, and those terms are not defined. So it is going to be a case-by-case basis on what qualifies to modify the order.
And that’s why having an attorney is important, because articulating that substantial and continuing change can be the difference between the court granting your request and denying it.
Well, I mean, and that’s really good information to know. And again, great reason to get an attorney, because everyone’s situation is unique to them and you’re going to need help navigating through. So I would suggest to anyone out there that has a family law matter to absolutely. Call the Stewart Law Group in Phoenix. Get some advice. Sit down and just see what the strategies might be and then decide whether to go forward or not. I mean, they have great attorneys there. Is amazing. And she can work a lot of magic and a lot of areas of family law. She just happens to be a little more of an expert than most people as child support.
And so, you know, we appreciate all of this great information today. You’ve certainly given us a lot to think about. And I know that the audience is enjoying finding out all of the of the gotchas that people don’t always think about when they’re just getting ready to embark on a divorce.
So, Jenny, I want to thank you so much for being on the show today. We really appreciate your expertise and I hope you come back again soon. Thank you for having me, Erica. It was a lot of fun, and one of the things that I miss about being at the attorney general’s office is having the opportunity to teach. And I hope your viewers, you know, walked away today a little more information that they had when they started. And I would love to come back at your convenience. So thank you for having me. Absolutely, I hope you have a wonderful day, and thanks, everyone, for listening.
We’ll see you again real soon.