Arizona Women Divorce Professionals (AWDP)

Arizona Women Divorce Professionals (AWDP) is a team of highly qualified professionals who help their clients successfully navigate through the divorce process. The team is comprised of eight women who have experience in family law, including attorney Leslie Satterlee, who focuses on representing individuals going in family law litigation.

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Other professionals in the group focus on financial planning, estate law, real estate, mortgages, insurance law, counseling, and bankruptcy. The divorce process can be complicated, but AWDP is here to provide knowledge and support.

On November 14th from 10:30 a.m. – noon, AWDP is hosting a presentation called “4 Secrets to Re-energize a Lifetime of Happiness & Passion.” Dr. Sheran Mattson will be the guest speaker at the presentation. Dr. Mattson is an experienced life coach, trainer, facilitator, and author. Along with Dr. Mattson’s presentation, many professionals will share their knowledge and experience regarding divorce.  The presentation will take place at the Granite Reef Senior Center, located at 1700 N. Granite Reef Rd., Scottsdale, Arizona.

This workshop is open to all and is FREE.  If you are going through a divorce, know someone going through a divorce, or merely want to learn more about the process or enjoy the presentation, we hope you will come.

Click here to RSVP.

 

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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.

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.

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.

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.

Can Refusing Your Kid McDonald’s Make You Unfit to Parent?

Attorney David Schorr was accused of being an unfit parent by a psychologist in New York because he refused his 4-year-old child McDonald’s. The New York father currently has visitation time with his son every Tuesday. Mr. Schorr asked his son what he wanted for dinner and the son replied with the typical child response… McDonald’s!

Mr. Schorr was not enthused about the thought of having fast food for dinner and offered several other options. The son refused all other options and proceeded to throw a fit to get his way. The exasperated father finally “put his foot down” and said if his son did not choose something other than McDonald’s, they would have nothing. To his dismay, the son chose nothing. Mr. Schorr returned his son to his mother without getting him their Tuesday night dinner.

French Fries

This all happened in the midst of a bitter custody battle. Sometimes in Arizona, when custody battles become a convoluted mess of “he said-she said,” courts appoint a forensic psychologist to speak with the family and make recommendations about the best interest of the children involved.  If a Scottsdale father is alleged to be unfit for refusing to take his spoiled kid to Sapporo, there are numerous psychologists and family interventionists in Maricopa County who may be asked to step in. That was likely the case in this custody battle. Though the courts are not required to follow the recommendations of the psychologist, they often put a lot of weight on the recommendations. Mr. Schorr was outraged by the accusations and recommendations in the psychologists report and brought a defamation suit against the psychologist.

To read more about the “unfit” McDonald’s denier, click here.

Getting Back Baby Jack – Putative Father Registration and Consent to Adoption in Arizona

A nightmare scenario for one Utah father has made national news.  The most disconcerting part of his story is that it could happen again right here in Arizona.

In 2010, Jake Strickland learned that he was to become a father.  Strickland and the baby’s mother, Whitney Pettersson Rathjen, mutually agreed to share joint responsibility for the care of their son despite their inability to maintain their intimate relationship together.  As the pregnancy progressed, Strickland became more and more involved.  He invited Rathjen to numerous family gatherings, paid for medical expenses and groceries, attended doctor appointments, and even converted a room in his home into a nursery to prepare for the arrival and care of his child.

Sledding

During this time, Strickland and Rathjen briefly discussed the issue of whether Strickland should register as the baby’s putative father.  A putative father registry reserves potential paternity rights (including consent to adoption) for the unwed biological father of a child in the event that parentage is disputed after the baby is born.  The legal presumption is that the husband of a married woman is the biological father of her child unless the unwed biological father overcomes legal barriers to establishing paternity, one of which is putative father registration.

Rathjen insisted that Strickland not register and take the mother at her word that she would not attempt to terminate his parental rights.  She even went so far as to threaten Strickland, saying that she would never allow him to see the baby if he submitted his name to the putative father registry.  Strickland, although leery of Rathjen’s odd response, felt he had no choice and never registered.

The day before the baby was born, Strickland and Rathjen spent the evening hours together walking through downtown Salt Lake City and enjoying the Christmas lights on display.  On December 29, 2010, Rathjen gave birth and, unbeknownst to Strickland, declared that she did not know the identity of the father and immediately consented to an adoption.

For eight days, Rathjen ignored or curtly responded to Strickland’s attempts to communicate with her.  At one point, Rathjen affirmed that she was still scheduled to have the baby by Caesarean section on January 12 before finally divulging the truth on January 5.  Since then, Strickland has been embroiled in an extensive and complex legal dispute with Rathjen, her attorneys, the adoptive parents, LDS Family Services, and the State of Utah over his wrongfully terminated parental rights.

Strickland alleges that Rathjen worked together with social workers and the adoptive family to streamline the adoption process and guarantee that he could not assert his paternal right to consent to the adoption until it was too late.  Strickland has been battling for the restoration of his parental rights for three years and filed a civil suit for fraud, racketeering, and other claims on January 2, 2014.  Essentially, Strickland believes that Utah law creates an adoption system that a birth mother can use to defraud an unwed father out of his parental rights with little to no recourse.

It is not yet clear whether the courts will vindicate Strickland’s claims, and the story is certain to continue to evolve as the civil case progresses (the adoption challenge, however, has reached the appellate stage and has established a clear record of factual wrongdoing even if the law does not create an eventual remedy).  That said, the case of “Baby Jack” in Utah could have happened much the same way in Arizona or one of numerous other states with similar unwed paternity law.

19th Century Family

Arizona’s putative father registry statute allows an unwed father to register his claim of paternity and to receive notice of adoption proceedings.  The unwed father must affirm that he is willing and able to support the child and actively seeking paternity in a separate action.  The unwed father must register within thirty days of the child’s birth unless he proves by clear and convincing evidence that it was impossible at the time, but the father’s lack of knowledge of the pregnancy is specifically excluded as a reason for failure to file within the thirty-day period.  The statute, codified at A.R.S. § 8-106.01, declares that “the fact that the putative father had sexual intercourse with the mother is deemed to be notice to the putative father of the pregnancy.”  Furthermore, the adoption consent statute (A.R.S. § 8-106) requires the putative father to object to a proposed adoption by filing a paternity petition and serving it to the mother.

This means that a father’s right to consent to, or reject, a potential adoption of his child can be defeated if the mother simply refuses to tell him about the pregnancy or the date of the child’s birth.  The Baby Jack scenario could easily be repeated in Arizona – and may already have occurred – because the statute does not waive its strict requirements in the event of fraud.  In fact, in 1971, then-Attorney General Gary K. Nelson issued an opinion recommending that the putative father registry statute be amended to require notice to all fathers whose identity is known when an adoption proceeding is initiated.  Op.Atty.Gen. No. 73-5-L.  Unfortunately, it appears that the Legislature ignored Mr. Nelson’s advice and still requires strict compliance with the onerous requirements of § 8-106.01.

As a result, one need not be a legal mystery writer to imagine the potential for a pregnant woman to accept the help of the baby’s father until shortly before childbirth and then dodge service of the paternity petition (assuming the putative father even receives notice of the adoption or manages to register in time).  The mere possibility of this result, let alone its apparent likelihood, is preposterous in today’s sophisticated world of family law.  Unfortunately, as long as states rely on antiquated notions of legitimacy and parental rights initially formulated almost a century or more in the past, the ability of well-meaning fathers to protect themselves will be handicapped.

Accordingly, the best way for an unwed father to protect his parental rights is to register before the baby is born notwithstanding his trust in the mother.  Admittedly, this advice is not helpful to an unwed father who does not learn of the pregnancy in time, either through mistake or misconduct by the mother, but early registration remains the best way to protect paternity rights.  That said, existing putative father law in Arizona and other states is not particularly effective at protecting the rights of fathers who want to be involved in their child’s upbringing.