In a recent case the Arizona Court of Appeals held that “a parent who has persistently and substantially restricted the other parent’s interaction with their child may not prove abandonment based on evidence that the other has only had limited involvement with the child.”  In the case of Calvin B. v. Brittany B., Mother filed in juvenile court to terminate Father’s parental rights based on abandonment.  Pursuant to A.R.S. §8-531(1), abandonment is “the failure of a parent to provide reasonable support and to maintain regular contact with the child, including providing normal supervision.” In this particular case, Father did not provide support and did not maintain continuous contact with the minor child.  However, the trial court noted that the record reflected several attempts by Father to exercise his parenting time, while Mother continuously controlled and limited Father’s access to the minor child. The Court held “a parent may not restrict the other parent from interacting with their child and then petition to terminate the latter’s rights for abandonment.”  The trial court noted that Mother created the obstacles for visitation and that it was remarkable that Father was still able to exercise some visitation. A claim of abandonment cannot be based on non-support alone but requires the failure to provide reasonable support and to maintain regular contact with the minor child. The Court of Appeals did not find clear and convincing evidence to warrant a termination of Father’s parental rights based upon abandonment but left the door open for Mother to pursue other statutory avenues for termination of Father’s parental rights.  It is important that you look at both parties’ conduct in analyzing a termination of parental rights case. THE UPWARD DEVIATION OF CHILD SUPPORT Mother, ex-wife of former Suns basketball player Steve Nash appealed the Judge’s ruling that an upward deviation to child support was not appropriate.   Mother requested an upward deviation due to the significantly larger monthly income.  The trial court did not find that an upward deviation was necessary. The Arizona Child Support Guidelines state the amount of child support must be “consistent with the reasonable needs of children and the abilities of parent’s to pay.”  The Arizona Child Support Guidelines schedule caps the combined total income at $20,000.00 per month, unless an upward deviation is requested by either parent.  In Steve Nash’s case the Appellate Court looked at the Trial Court’s failure in granting the upward deviation in child support.  Mother provided evidence that a higher amount was in the best interests of the minor children and Father offered to use an upward deviation.  It should be pointed out that the issue is not whether the parent who seeks the upward deviation can afford to provide for the children without assistance from the other. Based upon Child Support Guidelines the Court must review both parties income and the Court must give consideration to “the reasonable benefits beyond the children’s basic needs accorded to the children during the marriage.” The case was sent back to the Trial Court to analyze upward deviation. CUSTODY EVALUATORS PARENTING PLAN RECOMMENDATION A Trial Judge abused his discretion when he adopted the parenting time schedule recommended by the Custody Evaluator.  Mother and Father disputed child custody and parenting time.  The Trial Court adopted the parenting time schedule recommended by the custody evaluator but did not perform an independent examination of the factors outlined in A.R.S. §25-403(A).  The Trial Court has to make sufficient statutory findings pursuant to A.R.S. §25-403 which details eleven factors that are relevant to the child’s physical and emotional wellbeing in order for the Court to determine legal decision making and parenting time. – LIST FACTOR ATTORNEY FEES IN PRO BONO CASES A Family Court Judge is authorized to award attorneys’ fees to a party represented by pro bono counsel (no charge).  The amount for the hourly rate is based upon the prevailing market rate for attorney’s services.  In the recent case of Thompson v. Corry, No. 1 CA-CV 11-0729, the Court awarded Mother attorneys’ fees for having to file a motion to compel Father to pay his share of the children’s therapy.  The Appellate Court reasoned that neither A.R.S. §25-324 nor Rule 92(E)(2) conditions on attorneys’ fees award and whether the work performed was pro bono or for profit.  Further this is served by public policy which assist the party least able to pay to litigate and sanction the party who violates orders, respectively is also served by awarding fees for pro bono representation. The Court also held that the prevailing market rate was preferred which was much simpler and allowed for a reasonable calculation.]]>