Is it really SIDS?

We have all seen that episode of Law and Order SVU where Olivia and Elliot dramatically announce that the forensic results determined that the baby died of… SIDS.

SIDS stands for “Sudden Infant Death Syndrome.” According to Kid’s Health, “SIDS is the sudden and unexplained death of an infant who is younger than 1 year old.” Phoenix Children’s Hospital states that SIDS is also known as “crib death” because most deaths occur while the baby is sleeping, or left unattended, in a crib.

While SIDS sounds horrifying, it is not a “real” diagnosis. SIDS is what forensic analysts claim happened to the child when they cannot figure out why the baby died. SIDS is somewhat complicated to fully explain and understand. There is now an overarching acronym of SUID, which stands for Sudden Unexplained Infant Death. SUID is used when babymedical examiners have completed a thorough scene investigation and forensic exam, but cannot tell if the baby died of suffocation or some other malady. Hence, the cause of death was undetermined… or some would still say the baby died of SIDS. But really, SIDS is more closely described as the absence of a known cause of death, rather than an actual medical diagnosis.

The American SIDS Institution states, “Since there is usually no way to tell the difference between suffocation and SIDS at the autopsy, the scene investigation is of utmost importance.” The investigators use doll reenactments to determine and clarify what caused the infant’s death. This means there is no scientific way to prove SIDS was the cause, and the determination often results from a glorified form of role playing.

A conclusion that a child died from “SIDS” is not scientifically factual, but a “catch-all” when there is no explanation for an infant’s death.  Unfortunately, widespread misconceptions about SIDS and SUID prevail in law enforcement and the learned professions.

Alternatively, SIDS is often used as a “placeholder” explanation for an infant’s death while police and the Arizona Department of Child Services (“DCS”) investigate the tragedy for parental or caretaker misconduct.  This is truly the most dangerous form of “SIDS” because a forensically trained detective attempting to recreate the scene of an infant’s death may abide pseudoscience in his analysis and bring charges for wrongdoing that did not actually occur.

Picture the scene from Law and Order where detectives begin to question the parents or guardians after the detectives reenact the incident. The questioning always seem to occur in the room in which the child passed away. Viewers feel a chill go down their spine by watching the parents try to answer difficult questions in their time of pain. The parents’ answers to those difficult questions baby2impact whether charges are filed or the case is dismissed for the tragedy it is.

Facing prosecution for a major felony and a DCS investigation are the last things a parent or caretaker are prepared to handle after experiencing the death of an infant in their care.

The bottom line is that sometimes babies die in inexplicable ways, and coming to this realization allows parents or caretakers to begin coping with their loss. Focusing on the scientific reasoning does not bring the child back, and labeling the loss as “SIDS” does just that: labels the death.

Before making any decisions about your future after a tragedy, including legal decisions and answering questions from the police, reach out to a qualified attorney who understands the ramifications of a false allegation.

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Life-Altering False Allegations

A long-time client was recently accused of inappropriately touching his daughter while she bathed.   I handled the original custody matter when the child was only six (6) months old.  My client, we will call him “Mike,” and the mother of their child, we will call her “Sarah,” were never married. They had an on-again, off-again relationship and lived together for a brief time in Scottsdale before breaking up.  Sarah found out she was pregnant a few weeks after Mike asked her to move out of his home.

Their relationship was not overly tumultuous (at least from the perspective of an attorney who routinely handles high-conflict Family Court cases in Maricopa County).   There were no reported domestic violence incidents, but Mike did have a possession of marijuana charge prior to the relationship. Again, nothing too dramatic. They were pre-gaming before a Rodger Clyne and the Peacemakers concert in Phoenix, where he was arrested for possession of a small amount of weed.   Other than that, and a few inconsequential traffic infractions, my client did not have a noteworthy legal history.

sadSarah was bitter that the court gave Mike parenting time equivalent to 3 days a week.  Her anger subsided when Sarah and Mike briefly rekindled their relationship during a few parenting time exchanges.  In retrospect, it was a bad idea, as Sarah thought that the sexual relationship meant more than Mike did.  Around the same time, Mike, who was a medical resident at the time the matter started but was now a credentialed pediatrician, moved into a home in Paradise Valley.

A few months after their last fling, Mike began to date someone and the relationship became serious and exclusive in the following months. His girlfriend, also in healthcare (a dentist), moved into the PV home and they were engaged     shortly thereafter.

The now-fiancée spent some time with the child, and they had a healthy and blossoming step-parent relationship.  She would occasionally watch the child in the evenings if Mike had an on-call issue and had to go to the hospital.  It was a good situation and continued to improve as the couple planned their Mexico wedding.

Then, about 6 weeks before the beach wedding, things started to escalate with Sarah.  Mike needed the child’s passport to bring her to the wedding.  Sarah balked, claiming that Cancun was unsafe because it is “in Mexico.” My office was re-engaged to deal with the passport issue and to get the Parenting Coordinator and Family Court to address the issue on an expedited basis.   Although we quickly cleared up the passport issue, what should have been the next happy chapter in Mike’s life was about to turn into a nightmare.

About 2 weeks before the wedding, a police officer knocked on Mike’s front door and asked to ‘talk’.  According to the report, Sarah claimed that their daughter had been ‘touched’ by him because the child, barely 3 years old, had some sort of vaginal irritation.   My client snapped at the officer, livid that he was being accused of inappropriately touching his daughter.   He calmed quickly and excused himself from the conversation to call me.  (It was late in the evening and he managed to track down one of the attorneys in our office by cell phone.)

Mike was advised not to discuss the matter and demand to speak to his counsel.  The officer respected the request and may have realized that there was something odd about the allegation.

CPS, however, advised Sarah that she should not let Mike have parenting time “while the investigation was opened.” So, she filed an emergency petition seeking to suspend his parenting time because he “had molested my daughter.”

The court granted the request ex parte (without giving notice or a chance to be heard to Mike).

We scrambled.  I have handled false allegations (and not-false allegations) many times and knew that we needed to get the medical records and find out about any disclosures made by the child.   The irritation, according to not only her primary care pediatrician but also an expert forensic examiner, was nothing more than irritation from toilet paper from a child learning to clean herself.

ThScoldeden, we reviewed the forensic interview of the child.  She seemed beyond coached,
inconsistent, and incoherent.   Ultimately, the police found “no cause” to charge Mike and CPS unsubstantiated the allegation, but the wedding was postponed and Mike was traumatized by how close he was to facing substantial prison time on a felony conviction based on nothing more than Mother’s naked allegation.

Everything was on the line for my client – his relationship with his daughter, his medical license, his reputation – all for Mother’s revenge.

I share this story because this situation far too common. Police, DCS agents, and sometimes even Superior Court Judges often react first and reason later in child abuse allegation cases because no one wants to guess wrong and wind up on the front page of the Arizona Republic if a child is harmed. Understanding the process and helping educate the Courts (and sometimes the “experts”) is critical to ensuring that false allegations are disproven and the collateral damage is minimal.

See also “Whose Team are they on?  CPS Removal and TDM Meetings

The Top 5 Things to Consider Before Consulting with a Divorce Attorney

None of us get married thinking that one day we will want a divorce. Most people begin marriages thinking that they will be with their spouse forever. Then, life happens. Some couples overcome difficult obstacles together, while others realize they are not compatible with their partner. After they reach a realization that the marriage is broken, they may begin to ponder about divorce. People divorce for many reasons, and a marriage that ends with a divorce is not necessarily a failed marriage. Navigating through a divorce without legal representation can be difficult—that is why there are divorce attorneys. Before consulting with a divorce attorney, there are five major questions to ask yourself:

pondering

  1. Am I emotionally ready for a divorce?

In Arizona, a divorce is called a “dissolution”—which legally ends a marriage. Putting legality aside, a divorce is the breaking apart of a partnership. Before a person decides to seek an attorney’s legal guidance, the person must be emotionally ready to end their marriage. A common question is: “How do you know when you’re ready to end things?” Truthfully, the answer is different for every person. You may be the party being served with divorce papers and not prepared to end the marriage. Arizona does not require both parties to consent to a divorce. Once one party feels a divorce is necessary, the process to dissolve the marriage can commence. Even if you are not ready to proceed with a divorce, emotions must be set aside to reach the best outcome for all parties involved. A divorce should be treated as a business transaction with your attorney and a social transaction with a counselor—who will be better equipped to help you through the lifestyle adjustments.

  1. Am I financially ready for a divorce?

If you are seriously thinking about divorce, do not let the financial aspect keep you from proceeding with the case. You should learn what assets and/or debts you and your spouse have acquired, and what support may need to be paid or requested by putting together a budget. Some people are afraid of being “frozen out” during divorce proceedings. In Arizona, the system is set up in a way for the lower-earning spouse to have the same protection as the high-earning spouse. Before a final judgment is made, the judge can issue temporary orders that require the higher-earning spouse to pay spousal maintenance during the case. Spousal maintenance payments can even continue after the proceedings end if one of the party requires financial assistance. A judge can also order one party to pay the other spouse’s attorney fees, either because one party is in a stronger financial position or because one of the parties acts unreasonably during the dissolution process.  Note, however, that a good attorney will never promise a fees award or spousal maintenance because these are some of the most unsettled and unpredictable areas of family law.

  1. Have I researched attorneys?

It is important to research attorneys before deciding to have a consultation. Some helpful
websites are avvo.com and azbar.org. Take an attorney’s experience, client testimonials, paper and fees into account. Sometimes it is necessary to go to multiple consultations to find the right attorney. Remember that attorneys have different styles, and it is crucial to choose an attorney with whom you are comfortable.

  1. What should I take to my consultation?

Depending on your situation, it is important to take relevant documents to your consultation. If you have already began filling out paperwork using the “Self-service
center” from the Maricopa Superior Court website, make sure to take any and all forms. Also take a pen and paper to take notes during the meeting to reference later. You should
remember to take your driver’s license and the consultation fee (if the attorney requires one). Have questions for your attorney written down so you do not waste time trying to remember them. Most of all, bring a good attitude.  A good attorney will be honest and point out both the strengths and weaknesses of your position and may offer some ‘tough love’ advice, if necessary.

  1. Do I have specific questions ready to ask the attorney?

Initial client consultations are usually less than an hour. That means you have a very short amount of time to explain your situation to an attorney, determine whether the attorney’s personality and advice aligns with your goals, and determine whether the attorney can help you with your legal issues. In that compressed time frame, you must be concise, goal-oriented, and open to hearing both good and bad news. Having specific questions already prepared before an attorney consultation will allow you to get the most out of your brief time, but be prepared to deviate from your script if the attorney points out issues you may not have considered.

Grandparents Should Not Be Afraid of the Legal System

According to the U.S. Census Bureau, approximately 1 in 3 grandparent-maintained households did not have a biological parent present in the household. In Arizona in 2000, households that had grandparents living with grandchildren was higher than the national average. It is clear to see that grandparents play an important role in the raising of their grandchildren, not only in Arizona, but across the nation. What happens when grandparents are put in a situation in which they must raise the children or simply want to visit their grandchildren? Grandparents must know that they have rights and should not be afraid of the legal system.

grandparent

Legal: The following topics can be discussed at a consultation with an attorney. They are crucial to understand and answer before you begin accruing substantial fees because the statutes only allow grandparents to assert rights in limited circumstances.

 

 

In Loco Parentis

  • A.R.S. §25-409 (“Custody by a Non-Parent”) states that “a child custody proceeding may also be commenced in the superior court by a person other than a legal parent by filing a verified petition, or by a petition supported by an affidavit, in the county in which the child is permanently resident or is found.” The court may deny a petition unless the pleadings establish various truths. One of the truths is that “the person filing the petition stands in loco parentis to the child.” In loco parentis means “in place of a parent” and is someone who has acted as a parent to the child at some point in time when the child’s actual parents were absent.

Dependency

  • Grandparents can file for a dependency petition if they feel their relationship with the child meets the statutory requirements. A.R.S. §8-841 states that any interested party can file to begin dependency hearings in juvenile court. A “dependent” child is one who does not have a parent or guardian willing to exercise or are not capable of exercising care and control of the child.

Termination

  • A.R.S. §8-537 states that there are 10 grounds for the termination of parental rights. A packet can be found on the Maricopa Superior Court website to file a petition for termination (or severance) of parental rights. In Troxel v. Granville, the Court held it is against the fundamental right of parents to rear their children for any person to petition for a court-ordered right to see a child over the custodial parents’ objection.

grandparent2

Other considerations:

1.Whether the grandparent has the financial capacity to endure obtaining rights.

  • Obtaining court orders over a child often requires filing a law suit. With any legal situation, money is going to be a factor.

2.Whether the grandparent has the time to complete the legal process.

  • Law suits take time. There are statutory time requirements for many legal processes. Dealing with hearings, legal documents, and pushing papers through the legal system is not usually a swift process. Grandparents must be patient and understand that obtaining orders that protect the child will not happen overnight.

3. Whether the grandparent is prepared for the outcome—meaning the process could bring a family closer or create animosity.

  • Anytime family is involved, emotions are heavy. Family law directly affects people’s lives and relationships. You have to understand that obtaining court orders can have a positive or negative effect on the family situation and grandparents have to be prepared for either outcome. Grandparents must ask themselves if obtaining court orders is in the best interest of the child or children. If the answer is yes, know that the process is not necessarily going to be an easy one.

Should I Get a Divorce?

Everyone experiences difficulties at various points in life. These concerns can be numerous and minor, few and severe, or any combination between. Families endure financial hardship, healthcare problems, emotional and psychological differences, domestic disputes, births, deaths, and sometimes legal trouble.  For married couples, these and other issues may lead spouses to consider divorce.

The question of whether to seek a divorce in Maricopa County can trouble a person for years because the process and consequences of legally dissolving a marriage are complex and frequently change.  Some people may not know anyone who has divorced, or they may know people whose hardships only increased after beginning the process.  Others may have outdated ideas about dissolution based on rules that no longer apply. Still more may understand the process but are not able to weigh the consequences on their own.  Here are some tips and observations to enlighten your decision.

What is a dissolution?

Which Way To Go?In Arizona, ‘dissolution’ describes the process of legally ending a marriage (the same process that most people call ‘divorce’). Dissolution differs from annulment primarily in the court’s treatment of marital property because dissolution dissolves a marriage while an annulment treats the marriage as if it never existed because of some technical flaw in its formation.  Parties whom the court acknowledges were married are typically entitled to a more comprehensive analysis and distribution of community assets than parties whose marriage should never have been granted (because, for example, one of the parties was under 18 and lacked legal capacity to marry without parental permission).

How do I get started?

Dissolution begins when one of the spouses files a Petition for Dissolution with the appropriate court (in Arizona, this is usually the Superior Court for the county in which one of the parties resides).  For example, a married couple living in Scottsdale would likely file their dissolution action at the Superior Court of Maricopa County unless they have not lived in the state long enough to establish jurisdiction.  The petition tells the court the information that it needs to confirm that the parties filed in the correct jurisdiction and lays out the issues that the petitioner needs to have resolved, such as division of marital property, orders for spousal maintenance, child support, parenting time, and legal decision-making authority (formerly called custody).  Once the judge receives the petition and supporting paperwork, he will issue a preliminary injunction that orders the parties to maintain the ‘status quo’ by not unnecessarily depleting bank accounts or disposing other assets until the dissolution is complete.

Do I need to have a reason for divorce? 

Arizona, like most states, does not require fault by one of the spouses before dissolving a marriage.  Under the old system (abandoned decades ago), courts would only grant divorces if some form of marital impropriety occurred, such as adultery, abandonment, or domestic violence.  Only uncommon covenant marriages maintain limited permissible bases for divorce that are established by contract before the parties marry.  For non-covenant marriages (the vast majority), the petitioner need only declare in the petition that the marriage is irretrievably broken to begin the dissolution proceedings.  Courts may still consider marital misconduct when dividing property or scheduling parenting time, but the days in which couples attempted to fabricate a basis for divorce are over.

My spouse has all the money.  How can I afford a divorce?

With virtually infinite permutations of marital roles, it is extremely common that one spouse earns significantly more money than the other.  Sometimes, one spouse controls most of the family’s financial affairs and the other is unsure of the existence or whereabouts of community assets.  Unequal access to marital resources may work fine during the marriage, but it can also provide a basis for exploitation and stop an aggrieved spouse from seeking a divorce.

The fear of being ‘frozen out’ during dissolution proceedings should not prevent you from divorcing if you believe the marriage should end.  Even before a final judgment dividing the community property, the judge can issue temporary orders requiring the higher-earning spouse to pay spousal maintenance and other expenses during the case.  Spousal maintenance payments may continue after the divorce if one of the parties lacks substantial earning capacity or needs long-term support.  Sometimes, the judge will also order one spouse to pay the other spouse’s legal fees, especially if the higher earner acts unreasonably during negotiations.  Arizona law is structured to give parties with less bargaining power access to the same protections available to the high-income spouse.

Kid in Sprinkler

What if I lose my kids in the divorce?

There is no denying the fact that dissolving a marriage takes a toll on everyone in the family.  One of the biggest fears that traps people in toxic marriages is that the other parent will take the kids and the family will be destroyed.

First, Arizona law strongly favors granting as much parenting time to each parent as possible.  Unless there is some reason to believe otherwise, such as domestic violence or criminal history, the court presumes that each parent is fit to raise the children and that the children’s interests are best served by having a meaningful and continuing relationship with each parent.

Although many parties threaten that they will ‘battle for custody’ to prevent their spouse from proceeding with a divorce, the determination of where the children will live and spend their time depends on the children’s best interests, not the persistence or finances of one of the parents.  Unless your background or actions during the proceedings cast doubt on your ability to raise your children, your spouse cannot exclude you from their lives.  If your marriage is toxic beyond repair, it may be best for your children for you to divorce instead of keeping them in a marital home filled with conflict.  If you or your children need counseling to get through the process, that expense can also be included in the temporary orders.

Is being divorced worth getting divorced?

Whether you want to remain married is an immensely difficult question to answer.  If you are truly unhappy in your marriage, however, you should not allow fear of the legal process to trap you in a toxic or dangerous situation.  An experienced attorney with strong networking skills can get you the help you need to make an informed decision and, if you decide to seek dissolution, to make the proceedings move as smoothly as possible.  When the quality and fulfillment of your life is at stake, a positive outcome is worth investigating.

Special Divorce Considerations for Physicians

After representing numerous doctors (and the spouses of doctors) in Arizona, we realize that physician divorces are different.  It is not that the law treats doctors uniquely — there are a host of considerations that are not present in many other divorce scenarios.  Sure, there are the usual issues, but there are complicating factors unique to physicians, such as valuation of medical practices, high asset divisions, as well as spousal maintenance claims.Doctor

There are no clear studies on physician divorce rates, but one recent article did not glamorize success rate of doctor’s marriages.  Although the accuracy 0f these statistics is not perfect, it is indisputable that these dissolutions necessitate a different level of attention because of the issues involved.  Physicians generally have complex financial issues that begin with oppressive student loans, but are also typified by numerous investments including homes, vacation homes, timeshares, retirement accounts, financial accounts, non-traditional investments, and the medical practice itself.

While not meant to be comprehensive, we put together a list of special considerations that are generally critical to physician divorces.  We use this list when initially consulting with physicians (or their spouses) to gather information necessary to form a deliberate legal strategy:

1.  Spousal maintenance:  In Arizona our statute details factors for the Court to consider in awarding maintenance (elsewhere known as alimony).  These factors include, but are not limited to, length of marriage, standard of living during the marriage, and the disparity of income.  While we have seen a number of physician/physician divorces, we also frequently see cases in which the physician’s income is significantly higher than that earned by the spouse.  Sometimes, the non-physician spouse can also argue that they supported the physician through medical school and residency and gave up their own opportunities in the process.

Doctor with xray2.  Practice valuation: Some medical practices have an actual value, much like if the family owned a restaurant.  In Arizona, the spouse would have a claim to their community share of the practice value.  However, this does not apply to all physicians.  For example, an Emergency Room doctor who is employed by an ER practice may simply be paid a rate for his work, much like the hospitalist trend that has taken root here in Arizona.  In those situations there would not be a value to the practice.  However, if that ER doctor were a partner and had an ownership interest in his practice, the analysis would be significantly different.  Similarly, some medical offices have assets to value, such as a radiology practice that owns MRI machines.  Some of these machines have used market values in excess of $1,000,000.  If the physician spouse purchased the machine and paid it off during the marriage, the non-physician spouse could be entitled one-half the value of the equipment.

3. Debts:  It is not uncommon for physicians to have large student debts that still need to be paid off.  Furthermore, while some physicians may be very conscientious of the state of their marital financial affairs, others may be simply too busy and stressed with work to know the intimate details.  For example, they may have no clue that their spouse has racked up significant credit card debt, which is presumably community debt to divide in a divorce.  Knowing what debts you have and your options for ensuring that they get paid, including offsets from other property or even reduced maintenance, is key to a comprehensive settlement.

4. Parenting Time:  Some physicians have routine and well-established schedules.  Others do not and may work a rotating schedule with abnormal hours.  Still other divorcees may be in medical school and looking at internships, residencies, and other jobs that may require relocation.  These all play an important role in determining parenting time for the children.  For physicians, or soon-to-be physicians facing divorce, it is important to maximize the quality parenting time with your children.  Your parenting plan may need built-in flexibility or other creative ways to deal with potential scheduling issues that may arise. Dad and son

5. Child Support:  In Arizona, child support is calculated pursuant to the Arizona Child Support Guidelines.  The guidelines provide the amount of support based upon the respective incomes of the parties.  The guidelines, however, do not compute additional support for combined parental incomes of over $20,000 per month (i.e. your child support is essentially capped once it is calculated at any combined monthly income of the parents at $20,000).  But for physicians it is not uncommon for incomes to be in excess of this per month, and by extension it is not uncommon for children to be accustomed to life styles that require higher than normally calculated child support.  Child support orders may deviate from guideline amounts upon showing of good cause, but the necessity of a deviation can be difficult to discern.

6.  Time and Disclosures:  Often, physicians are not used to having to fully disclose all information regarding their finances to attorneys.  They are also very busy with their practices and may even have schedules that are incompatible with normal working hours.  This makes obtaining information that is required to be disclosed more complicated than usual.  On top of this, perhaps the only exposure physicians have to attorneys before entering into a divorce proceeding is in malpractice suits.  Consequently, it is not uncommon for physicians to be too busy/skeptical/jaded when asked to provide years’ worth of financial records.  Despite this, the best policy is to be forthcoming with all required disclosures.

Physician dissolution cases require finesse and, above all else, trust between the parties and their attorneys. Ideally, a skilled attorney can navigate the treacherous waters of divorce without capsizing the family, the medical practice, or the parties involved, but the best results can only occur when each participant acts in good faith.

Children Saved from a Hot Car

It’s scary to think that anyone would leave their children locked in a car during the summer months. Recently, a Texas mother did just that. She went to get her hair cut at a salon and left her children in the car.

Shoppers at the center heard children crying and quickly found the two children locked in the car. What would you do?

Parking lotAfter hearing the cries of the children, a few people passing by knew they had to do something. Thinking they had little time to spare, they busted the window of the car and soon had the children out in fresh air. The mother came out to see what the commotion was about and realized what was happening. She begged the crowd not to call police and no one had. Hopefully, this was a lesson learned for the Texas mother and she will not leave her kids in the car again.

This could have been a very tragic story. Things like this happen all too often around the country. We have heard numerous stories this summer of children being left in cars. Recently, Shanesha Taylor left her children in a car while she went in for a job interview in Scottsdale, Arizona. Luckily it was not during our hottest summer months in which temperatures are known to reach over 110°, but Ms. Taylor was charged with felony child abuse. Leaving a child in a locked car in the summer is a serious offense and very dangerous to children, especially here in Arizona. It is important to remember not to leave your children in the car even for a “quick” errand. Take the extra three minutes to unbuckle them and bring them in with you.

Parenting Disaster

The tables were sadly turned on a well-meaning former Pennsylvania prosecutor and his wife when they were charged with child abuse. The couple, Douglas and Kristen Barbour, thought they were doing the right thing in adopting two children from Ethiopia, but soon learned they were not equipped to parent these children with special needs.

The Barbours adopted a 6-year-old boy and an 18-month-old girl in March of 2012. They believed if they raised the children as they had raised their two biological children, they would enjoy the same great results. Unfortunately, the children did not adjust as well as the parents had hoped and the Barbours soon recognized they needed help. They sought the advice of an expert in foreign adoptions but refused to follow his recommendations to be more flexible with their parenting style. They wanted to parent the way they saw fit.

Small GirlThe Barbours made sure to bring the children to the doctors when the children were ill and tried their best to handle the children’s behavioral issues. However, it was soon clear the parents could not meet the children’s needs and the children suffered as a result. Although the boy was six, he went to the bathroom in his pants. The parents attempted to discipline him by forcing him to eat in the bathroom or stand alone in the dark. The girl had multiple head fractures – although the parents allege it was because she was clumsy, the doctors who examined her were doubtful of that conclusion. As a result, the boy was malnourished and ended up losing 10 pounds in the Barbours’ custody and the girl was healing from multiple fractures.

Similar situations have happened in Phoenix, Arizona and Birmingham, Alabama in recent years, where excessive punishment led to criminal charges that made national news.  Arguably, many of these parents did not intend to hurt their children. In fact, several sought help from experts, but in the end were patently unsuccessful, usually because they failed to follow the experts’ advice. Notwithstanding various safeguards that exists to protect children, the harm that parents can inflict is often the worst of all.

Click here for more on this story.

Implications of Protective Orders

Orders of Protection are not to be taken lightly. There are many ways an Order of Protection can affect your life.

In Arizona, Orders of Protection are governed by the Arizona Rules of Protective Order Procedures. An Order of Protection is sought when someone feels they are in danger of being physically harmed or have been physically harmed by another person. The other person must have had some type of relationship with the person they are seeking the order against. There are many relationships the parties could share or have shared in the past giving rise to a need for an Order. These relationships could include former lovers, relationship through marriage or blood, residing together, or having a child in common.

ConfrontationIn order to get an Order of Protection, the Plaintiff (requesting party) needs to go to Court and file a Petition for the Order of Protection.  The Petition could be filed with a municipal or justice court in places like Mesa, Glendale, or Scottsdale, or in the Superior Court in Phoenix.  The Court will consider the Petition for Order of Protection and can grant the Order based solely upon what the Plaintiff says.

Once the Order is granted, it is served on the defendant (other party).  At that point, the Defendant has the right to contest the Order of Protection.  If a hearing is requested, both parties need to appear in the Court and the judge will decide whether the Order should be kept in place, modified, or dismissed. This is a crucial point in the case. If an Order is not defended or contested properly, it could have lasting implications on you.

What could that mean for you if the Order is issued against you, or upheld against you after a hearing?

Orders of Protection are likely to show up on background checks run by potential employers, preventing you from obtaining certain jobs. An Order of Protection could also get you terminated from your current position or reassigned to other duties within a company or government office. Orders of Protection prevent you from possessing a firearm and, if you already own one, force you to relinquish it. The Court could also order the exclusive use of a common residence to the Plaintiff.

Gated Patio

The Order may also limit your ability to see or communicate with children, and that could also have an effect on any other pending family court cases.  Orders of Protection cannot list a child unless the judicial officer believes that “physical harm has resulted or may result to the child, or the alleged acts of domestic violence involved the child,” but the weight that the judge gives to allegations in protective order hearings is often greater than what would be given in other types of cases.

Under emergency circumstances, a judge may err on the side of caution and enter a child on a temporary basis even with a minimal allegation of danger. This is a small consolation because in the end an Order of Protection could affect permanent parenting time and legal decision-making.

Although many parties proceed without representation in Order of Protection hearings, the severe consequences of having an Order entered against you may justify retaining an attorney.  Even though the Order is temporary, its impact can last a lifetime.

What Happens to Children When Parents Split?

There is a growing trend in divorce cases to award equal parenting time to both parents. Several states, including Arizona, have joined this trend and modified their relevant statutes.  Parents in Phoenix, Arizona have seen this trend through the amendments enacted in the beginning of 2013. Specifically, the language in the statutes changed from “custody” to “legal decision-making,” signifying a change in the collective attitude toward parental rights and responsibilities.

Dad with kids

From a historical standpoint, the trend in parenting time arrangements has dramatically changed over the years. In the beginning, women were free to leave men, but the children stayed with their father – as the children were considered more akin to property. The trend slowly moved toward a court system that favored mothers as the prevailing belief emerged that mothers provided a more nurturing environment, especially for younger children (also called the tender years doctrine).

All that may be history now. Though there are exceptions (which may include domestic violence, substance abuse, mental health issues, and other safety concerns), courts have recognized the need for both parents to have a loving and healthy relationship with their children.

This also means that Arizona now sets out to “maximize” each parent’s parenting time with the child(ren). To further illustrate the importance of this trend and policy, Arizona legislature has addressed the issue in its statutes. Specifically, the best interest statute, ARS § 25-403(A)(6), states that the court must consider “which parent is more likely to allow the child frequent, meaningful, and continuing contact with the other parent.”

Mother with childIf the court finds that a parent is constantly trying to play “keep away” with the children or frequently puts the other parent down in front of the children, it will likely have a negative impact to that parent’s time with the children. Courts are reluctant to tear children away from either parent and courts want each parent to foster a healthy relationship with their children.

An important point to consider during a divorce or custody proceeding is that it’s more likely than ever that you will be sharing parenting time. Maintaining a functioning, good-faith relationship with the other parent is critical to ensure that you do not lose time with your children.