Articles Posted in Family Law

by
25 U.S.C. 1911(b) of the Indian Child Welfare Act (ICWA) addresses transfer only of foster care replacement and termination-of-parental-rights actions and does not apply to state preadoptive and adoptive placements. The Department of Child Safety moved to terminate the parental rights of the parents of A.D., a member of the Gila River Indian Community. After the juvenile court terminated the rights of A.D.’s parents the foster parents intervened and filed a petition to adopt A.D. The Community moved to transfer the proceedings to its tribal court under section 1911(b). The juvenile court denied the motion, finding that the foster parents had met their burden of showing that good cause existed under section 1911(b) to deny the motion. The Supreme Court affirmed the juvenile court’s denial of the Community’s motion to transfer, holding that ICWA does not govern the transfer of preadoptive and adoptive placement actions, but state courts may nonetheless transfer such cases involving Indian children to tribal courts. View "Gila River Indian Community v. Department of Child Safety" on Justia Law

by
When A.C. was born, Mother signed an affidavit of paternity falsely stating that A.C.’s father was unknown. Mother also signed a consent to adoption in favor of Petitioners. When Petitioners found no notice of claim of paternity associated with A.C., Petitioners filed a petition to adopt A.C. Meanwhile, having learned of the child’s birth, Father filed a paternity action. Unaware of the pending paternity action, the juvenile court granted A.C.’s adoption. Petitioners subsequently moved to dismiss the paternity case, and Father moved to set aside the adoption. Even though Father never filed a notice of claim of paternity with the putative fathers registry as statutorily required, the juvenile court set aside the adoption. The court of appeals affirmed. The Supreme Court affirmed, holding that because Father timely filed and served his paternity action, he preserved his right to establish paternity despite his failure strictly to comply with the putative father registration requirement. View "David C. v. Alexis S." on Justia Law

Posted in: Family Law

by
Mother filed this action to terminate the parental rights of Father to their minor child on the ground of abandonment. After a contested severance hearing, the juvenile court found that Father had abandoned the child and that severance was in the child’s best interests. The court of appeals reversed, concluding that the record did not establish by a preponderance of the evidence that termination was in the child’s best interests. The Supreme Court reversed the court of appeals’ decision and affirmed the juvenile court’s finding that termination of Father’s parental rights was in the child’s best interest, holding that reasonable evidence supported the juvenile court’s finding that severance would be in the child’s best interests. View "Demetrius L. v. Joshlynn F." on Justia Law

Posted in: Family Law

by
When Robert and Diane Merrill divorced in 1993 the family court awarded each party one-half of Robert’s military retirement pay (MRP) disability benefits as their separate property. In 2004, the Department of Veterans Affairs (VA) found Robert eligible to receive Combat-Related Special Compensation (CRSC). Robert waived a portion of MRP to receive CRSC. Consequently, Diane’s monthly share of MRP decreased significantly. In 2010, Diane requested that the family court award her arrearages from her reduced share of MRP and compensate her for future reduced payments of MRP. The family court denied the petition, concluding that Ariz. Rev. Stat. 25-318.01 - which prohibits courts from “making up” for a reduction in MRP due to a retired veteran receiving CRSC benefits by awarding additional assets to the non-military ex-spouse - proscribed the requested relief. The court of appeals reversed, concluding that section 25-318.01 does not apply to CRSC awards. The legislature subsequently amended section 25-318.01 to make it applicable to CRSC benefits. Thereafter, the court of appeals vacated its order and deemed Diane’s 2010 petition denied. The Supreme Court vacated the court of appeals’ decision, holding that section 25-318.01 cannot apply to preclude indemnification when a retired veteran makes a post-decree waiver of MRP to obtain CRSC benefits and the decree was entered before section 25-318.01’s effective date. View "Merrill v. Merrill" on Justia Law

Posted in: Family Law

by
Pursuant to a divorce decree entered in 1991, Sandra Powell began receiving fifty percent of John Howell’s military retirement pay (MRP) when John retired from the Air Force. John later qualified for monthly, tax-exempt VA disability payments. A veteran who receives MRP cannot collect VA disability benefits unless the veteran waives an equivalent amount of MRP. John elected a VA waiver. Accordingly, monthly MRP payments to both John and Sandra were reduced. Sandra moved to enforce the decree’s division of MRP and also sought an arrearage amount equaling the reductions in her share of MRP after the VA waiver. John opposed the request, arguing that Ariz. Rev. Stat. 25-318.01 barred the family court from requiring him to indemnify Sandra for the reduction in her share of MRP. The family court granted Sandra’s motion. The Supreme Court affirmed, holding (1) federal law does not preempt the family court’s authority to order a retired veteran to indemnify an ex-spouse for a reduction in MRP caused by a post-decree waiver of MRP made to obtain disability benefits; and (2) section 25-318.01 does not prohibit the court from entering an indemnification order in these circumstances if the ex-spouse’s share of MRP vested as a property right before 2010. View "Howell v. Howell" on Justia Law

Posted in: Family Law

by
Martha and Mario Madrigal sued the City of Mesa. After the case was settled by the Madrigals’ second attorney, Raymond Slomski, the Madrigals’ first attorney, Edward Fitzhugh, assigned his rights under the parties’ contingent fee agreement to Al Carranza. Carranza later sued the Madrigals (“the fee-collection action”). The Madrigals subsequently divorced pursuant to a decree that allocated the remaining funds from the as-yet-unresolved fee-collection action. Mario and Carranza then entered into a settlement agreement that called for a portion of the disputed funds to be released to Mario and Carranza. The superior court approved the agreement. Slomski filed an interpleader action contesting the settlement. Thereafter, Martha successfully moved to set aside the order approving the settlement. Carranza then moved to substitute Fitzhugh as the real party in interest in both the fee-collection action and the interpleader action. The superior court denied the substitution request and court granted summary judgment in favor of Martha in the fee-collection action. The court of appeals affirmed summary judgment but reversed the denial of Carranza’s motion to substitute in the fee-collection action. The Supreme Court vacated in part, holding that the trial court did not abuse its discretion in denying the motions to substitute. View "Carranza v. Madrigal" on Justia Law

by
The juvenile court terminated the parental rights of Father to his two children. Father appealed. While the appeal was pending, the juvenile court ordered the children’s adoption. Thereafter, the court of appeals reversed the termination of Father’s parental rights. Father then filed a motion asking the juvenile court to set aside the adoption pursuant to Arizona Rule of Procedure for Juvenile Court 85(A). The juvenile court denied the motion. The court of appeals vacated the adoption order as void, concluding that Arizona Rule of Procedure for Juvenile Court 103(F) divests the juvenile court of authority to enter an adoption order pending a biological parent’s appeal of a termination-of-rights order. The Supreme Court vacated the court of appeals’ opinion, holding that the court of appeals misinterpreted Rule 103(F) and that the juvenile court had authority to enter the adoption order. Remanded to the court of appeals to decide whether the juvenile court properly denied Father’s motion to set aside the adoption pursuant to Rule 85(A). View "Roberto F. v. Dep’t of Child Safety" on Justia Law

Posted in: Family Law

by
Daughter accused Stepfather of sexual abuse. Because Daughter was a minor at the time of the accusation, Mother asserted victims’ rights on her behalf. Before trial, Daughter turned eighteen. Stepfather then filed a motion to compel Mother to submit to a defense interview, which the superior court granted. Mother and Daughter sought special action relief in the court of appeals. The court held that the right of a parent who exercises victims’ rights on behalf of a minor to refuse a defense interview expires when the victim reaches the age of eighteen. The Supreme Court vacated the opinion of the court of appeals and the order of the superior court, holding that a parent who exercises victims’ rights on behalf of a minor child is statutorily entitled to refuse a defense interview through the final disposition of the charges, even if the child earlier turns eighteen. View "J.D. v. Hon. Hugh Hegyi" on Justia Law

Posted in: Family Law

by
At issue in this case was whether a juvenile court can delegate discretion to the Arizona Department of Economic Security (ADES) to return a dependent child to his or her parents without first determining that return is in the child’s best interests. The juvenile court concluded that ADES has the discretion to determine when it serves a dependent child’s best interests to be returned to the child’s parent or guardian. The Supreme Court vacated the juvenile court’s order, holding (1) a juvenile court must specifically determine that return of a dependent child to his or her parents is in the child’s best interests before ordering the return; and (2) the juvenile court in this case erred by granting discretion to ADES to place dependent children with their parents without a prior judicial determination that reunification was in the children’s best interests. View "Alexander M. v. Hon. Lisa Abrams" on Justia Law

by
In 2006, Wife and Husband divorced. In 2011, the superior court conducted a hearing on the parties’ post-decree petitions. Prior to the hearing, Wife filed a petition seeking reimbursement for certain 2010-11 expenses under the terms of the decree of dissolution. The court, however, did not consider the expenses at the hearing. On November 1, 2011, the court entered an order resolving all of the issues listed in the pretrial statement and denied Wife’s request for attorneys’ fees. Shortly thereafter, the court vacated this fee ruling. On September 12, 2012, the court awarded Wife a judgment on the 2010-11 expenses and again denied her request for attorneys’ fees. On October 11, 2012, Wife appealed from both the November 1, 2011 and September 12, 2012 orders. The court of appeals dismissed the appeal from the November 1, 2011 order as untimely. The Supreme Court vacated the court of appeals’ order and remanded, holding a family court order that neither resolves a pending request for attorneys’ fees nor includes language making the order appealable is not final for purposes of appeal. View "Bollermann v. Nowlis" on Justia Law