Is It Always Necessary/Required to Establish a Primary Physical Custodian for the Children in a Divorce?

Answer: No. Equal physical custody is a possibility in divorce, legal separation and paternity cases. When the family court orders both joint legal custody and equal parenting time, it is often referred to as shared custody.

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

Is it Legal to Bug or Tape Record Conversations in Arizona?

Answer: I get quite a few inquiries at my law office about the legalities of recording phone or other conversations in Arizona. In particular, the issue arises frequently in family law cases where child custody is at issue. Related to the recording issue is the "bugging" issue.

There are a number of variables that affect the answer to the central question, whether it is legal to either record or even bug. First, bugging and recording are two different issues under Arizona law, often related, but also potentially very different under the law. Second, the laws regarding bugging and recording vary by jurisdiction so what is legal in one state may be illegal in another. As well, the federal law may vary from the states' laws.

A. Bugging, otherwise known as wiretapping, typically means placing a device on a phone that allows one to eavesdrop on a conversation or other transmission. Bugging is considered illegal almost all of the time for two reasons primarily: First, it allows someone to listen to a private conversation between two or more unsuspecting parties. Second, bugs are usually placed without permission so you have a number of infractions inherent in such trespass-like activity. If you suspect someone has placed a bug on your phone or other device, you should call the police.

B. In the case of a telephone or in-person conversation, recording simply means making a copy of the conversation between two or more people. Recording is illegal in Arizona if NO party to the conversation knows that the conversation is being recorded. However, in Arizona, and this varies by state, if one party to the conversation knows that the conversation is being recorded, it is not illegal. Thus, if someone tape recorded a phone call or conversation involving him/herself and another person, that's legal in Arizona. If the same person taps into a phone line and records a conversation between two people who are unaware they are being recorded, it is ILLEGAL. Arizona and federal law are similar in this respect; however, recording conversations is illegal in certain other states unless all parties know of the recording and consent. There may be some cross-jurisdictional issues involved when tape recording a conversation across state or national boundaries. Prior to tape recording, I recommend that you consult an attorney in the appropriate jurisdiction.

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an attorney-client relationship. To create such a relationship, both the attorney and potential client must sign a written fee agreement. The information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

What is the Biggest Mistake Fathers Make in Paternity Cases?

Answer: Delaying. Many fathers wait too long to legally establish paternity in the family court. While many fathers do not understand the importance of having the family court declare them the legal father of their child and delay on that basis, other fathers simply wait until the relationship with their child's mother goes south or a process server serves them (the father) with papers for child support, child custody and/or visitation. This results in substantial problems that could have been avoided by dealing with the issue under the applicable Arizona family laws right away.

Some of the problems delay in establishing paternity can cause include decreased chance of primary physical or joint custody, child support arrearages, an appearance of disinterest and the impression that the Arizona courts are not fair to fathers. Let me explain:

Child Custody and Visitation: The courts like consistency in a child's life. Thus, if a father does not does not have a court order declaring him to be the legal father, it is very likely that the mother has been allowed to prevail on disputed issues regarding those entities that require proof of a parent's legal rights to make decisions. Such entities include schools, daycares, medical facilities, the Office of Vital Records and the like. Thus, it is likely that when it comes to making its decision about legal custody, the family courts usually go with the perceived status quo.

Similarly, if a father does not have anything done officially in the courts to solidify his rights, the mother has complete control over visitation and it is very possible that the father will be having access to his child less than he would prefer. So, as with custody, the family court may opt for the status quo, meaning that the father will receive the [possibly minimal] visitation he received up to the time the family court became involved. Thus, establishing legal rights early can help prevent a negative status quo. Of course, many fathers have their children residing with them or while also living with the child's mother and that is a very relevant factor the court considers when determining child custody and visitation, regardless of when the family court officially declares paternity and visitation rights.

Child Support Arrearages (Arrears): At the time the family court establishes legal paternity (via an "Order of Paternity"), the family court almost always also establishes child support. Like it or not, the family court also routinely orders that child support be made retroactive to a certain date. How far back the family court can go in retroactively apply child support varies based on a case's particular facts but the normal rule of law is three years. Thus, if a father either paid nothing or underpaid pursuant to the Arizona Child Support Guidelines, the father will have to pay both his current support and the arrears. In addition, the court can order that the father pay costs associated with the child's birth and the mother's expenses related thereto. Therefore, it is best to legally establish paternity quickly to avoid having large child support arrearages and other amounts owed.

The Appearance of Disinterest: It is possible that when a father waits too long to officially request his legal rights to his child, a family court judge could see it as a sign of disinterest. This varies from situation to situation but in the case where a father does not live with his child, it looks better when the father shows enough interest to study up on his legal rights and initiate court proceedings to officialize custody and visitation (parental access), decision-making rights and child support. In particular, judges may see in negative terms a father's request for visitation and other legal rights done only after a mother brings an action in the family court to establish paternity and child support.

Unfairness to Fathers: There may a number of factors that make some believe that the Arizona family courts are not fair to fathers when it comes to child custody, child support and parenting time. Obviously, that is a big debate. However, my personal experience shows me that the perception is worse for those fathers who delay establishing paternity. As discussed above, delay can mean that mothers have an advantage over fathers.


Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.