What State's Family Court has Jurisdiction Over My Divorce and Custody Issues?

Answer: Jurisdiction over a divorce (or other family court proceeding) and jurisdiction over children who may be part of an anticipated/ongoing/previous divorce/modification are often different. For example, under Arizona's family law statutes, Arizona family courts may assume jurisdiction over a divorce when one party to the divorce has been domiciled in Arizona for 90 days. However, except under limited circumstances, including certain emergencies, the Arizona family court will not have jurisdiction over children until they have resided in Arizona for 6 months. Arizona statute provides the 90-day domicile requirement in the case of divorce jurisdiction. The Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA) controls the issue of jurisdiction over children. The UCCJEA is a "uniform law," meaning that a national committee wrote it with the expectation that each state would add it to its own family law statutes, which Arizona did. The UCCJEA sets forth various factors that a family court must use in determining child custody jurisdiction, the strongest factor of which is the six month residency requirement. The reason behind creating the UCCJEA and its predecessor laws is to prevent what is known in the courts as "forum shopping." Forum shopping simply means trying to find a court that has a more favorable set of rules, statutes or judges than another. In times past, it was not unusual for the non-custodial parent of a child to take the child to another state without permission, make up outrageous allegations and thus convince the new state to order custody to the abducting parent. This created multiple problems including encouraging child abductions and having two contradictory court orders, also known as a big mess. The UCCJEA and its federal counterpart, the Parental Kidnapping Prevention Act (PKPA), are attempts to address these common issues of family law.

As a practical or perhaps impractical matter, the above information makes it possible for one court to have jurisdiction over a divorce based on Arizona's 90-day family law domicile rule and another state's family court to have jurisdiction over the children of that same divorce. Thus, a couple could be divorced by one state's courts and another state could have jurisdiction over child custody and visitation. Who should have jurisdiction over the child support? Usually the state in which the parent paying child support resides.

Keep in mind that once an Arizona divorce is filed and served, a court order called a Preliminary Injunction goes into effect. (Under Arizona family law, the Preliminary Injunction is effective upon the initial petitioner upon filing and upon the other spouse (the "Respondent") upon service). Among other things, this Injunction states that neither party may remove the children from Arizona without permission. However, if the children are removed prior to the divorce being filed, a number of factors come into play. Usually the strongest factor is the length of time that the children have resided in each place. Each situation is different, however, which is why we have family court judges and Arizona famliy lawyers to help sort things out. Always consult an attorney on these issues because a bad decision can result in a criminal penalty!

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.

Can Child Support be Retroactively Modified After It Becomes Due?

Answer: Normally not and, since passage of the Bradley Amendment by the U.S. Congress in 1986, it seems difficult indeed. The Bradley Amendment, 42 U.S.C. § 666(a)(9)(c), basically says that child support cannot be modified after the fact.

The Bradley Amendment, part of a very lengthy federal law, reads as follows:


TITLE 42. CHAPTER 7. SUBCHAPTER IV. Part D. § 666

§ 666. Requirement of Statutorily Prescribed Procedures to Improve Effectiveness of Child Support Enforcement

(a) Types of procedures required

In order to satisfy section 654 (20)(A) of this title, each State must have in effect laws requiring the use of the following procedures, consistent with this section and with regulations of the Secretary, to increase the effectiveness of the program which the State administers under this part:

(9) Procedures which require that any payment or installment of support under any child support order, whether ordered through the State judicial system or through the expedited processes required by paragraph (2), is (on and after the date it is due)—

(C) not subject to retroactive modification by such State or by any other State; except that such procedures may permit modification with respect to any period during which there is pending a petition for modification, but only from the date that notice of such petition has been given, either directly or through the appropriate agent, to the obligee or (where the obligee is the petitioner) to the obligor.

Many people, groups and even judges have come out against the law as having unintended consequences and being grossly unfair. The law does not allow for exceptions even in extreme circumstances. For example, a man was mistakenly put on death row for 10 years and, when his innocence was proven, he was so far in arrears on his child support upon his release ($50,000) that he runs the risk of being thrown in jail, if that has not already occurred. Thus, I understand that there are lawsuits pending regarding the Amendment.

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.

Does Arizona Family Law Require a Parent to Pay for a Child's College Education?

Answer: Normally not. Unless a parent agrees to pay for a child's college education and formally obligates him/herself to do so, a parent is not so required. In other words, there is no Arizona family law requiring a parent to pay for his or her child's college education.

However, state laws on this subject vary and it is possible that Arizona could enforce a court order for a parent to pay for college costs entered in another state's family court. This could happen because the parent ordered to pay moved to Arizona and the divorce decree was domesticated in Arizona (meaning the divorce decree was officially transferred to Arizona for purposes of enforcement in our family courts).

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 the Final Month of Child Support Prorated or is the Full Amount Due?

Answer: Section 4 of the Arizona Child Support Guidelines, adopted by the Arizona Supreme Court and effective January 1, 2005, addresses this issue. Under Section 4 of the Arizona Child Support Guidelines, child support ends as of the last day of the month in which the final child support payment is due. Thus, under the Arizona Child Support Guidelines, a full monthly payment is due for the final month, even if the child who is the subject of the order meets the emancipation requirements earlier in the month.

Section 4 of the Arizona Child Support Guidelines is reprinted below for your information:

4. DURATION OF CHILD SUPPORT

Duration of child support is governed by Arizona Revised Statutes, Sections 25-320 and 25-
501, except as provided in Arizona Revised Statutes, Section 25-1304.
Upon entry of an initial or modified child support order, the court shall, or in any subsequent
action relating to the child support order, the court may, establish a presumptive date for the
termination of the current child support obligation. The presumptive termination date shall
be the last day of the month of the 18th birthday of the youngest child included in the order
unless the court finds that it is projected that the youngest child will not complete high
school by age 18. In that event, the presumptive termination date shall be the last day of the
month of the anticipated graduation date or age 19, whichever occurs first. The
administrative income withholding order issued by the department or its agent in Title IV-D
cases and an Order of Assignment issued by the court shall include the presumptive
termination date. The presumptive date may be modified upon changed circumstances.
An employer or other payor of funds honoring an Order of Assignment or an administrative
income withholding order that includes the presumptive termination date and is for current
child support only, shall discontinue withholding monies after the last pay period of the
month of the presumptive termination date. If the Order of Assignment or administrative
income withholding order includes current child support and arrearage payment, the
employer or other payor of funds shall continue withholding the entire amount listed on the
Order of Assignment or administrative income withholding order until further order.
For purposes of determining the presumptive termination date, it is further presumed:
A. That a child not yet in school will enter 1st grade if the child reaches age 6 on or before
September 1 of the year in which the child reaches age 6; otherwise, it is presumed that
the child will enter 1st grade the following year; and,
B. That a child will graduate in the month of May after completing the 12 th grade.

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.