DETAILED ORDERS ARE BEST IN HIGH CONFLICT CASES

Brandon Sander, Esq.

As you may imagine, the fighting between parties in a high conflict case does not generally end when the judge issues an order.

They still have to co-parent until the child is grown. If the child was young when the order was issued, most of the interaction between the parties will be after the order.

Consequently, many parties to high conflict cases find themselves back in court repeatedly either attempting to enforce or modify the court’s order, or interacting with police officers due to an alleged violation of the order.

Since the parties are unlikely to agree on anything, it is very important to have an order that is as clear as possible to reduce the likelihood of disputes regarding the terms.

Parenting Time Disputes

Many people who were previously embroiled in a high conflict divorce case find themselves embroiled in a state of continuing conflict regarding the order issued by the court.

When one of the parties believes that the other is in breach of the order by refusing to exchange the child with the other parent, the immediate only course of action at times is to involve the police.

The police officer who arrives to deal with the issue will most likely know nothing about the case, and will therefore have to rely on what is written in the order to determine which party is correct.

The need for a detailed order is clear. Therefore, the order should specifically state which days each parent has the child, and the exchange times. If not, the parties will likely end up back in court on an enforcement or modification petition.

Legal Decision-Making Disputes

Legal Decision-Making Authority is the authority to make legal decisions on behalf of the child. The common categories referred to in orders are education, medical care, and religion.

If the parents have a dispute on a legal decision-making matter, such as which school the child will attend, it is best to have a tie-breaker to prevent the parties from becoming engaged in another court battle- such as relying on an educator’s or doctor’s recommendation.

Many times orders will contain a mandatory mediation clause, which requires the parties to attempt to resolve all non-emergency issues through mediation prior to seeking court intervention.

However, the effectiveness of this clause is questionable when dealing with high-conflict parents.

Until recently a popular tie-breaker was to award one of the parents final legal decision-making authority; however, a the Arizona Court of Appeals recently held, in Nicaise v. Sundaram, that an award of final decision-making authority to one parent is interpreted as that parent having sole legal decision-making authority.

Further, the court held that it may not substitute its own judgment for the judgment of the parents, but may award decision-making authority on the basis of the expected decision each parent will make.

In short, the court has switched course from making a decision for the parents on a disputed issue, to awarding one of the parents authority to make the decision in question when a dispute is brought before the court.

Therefore, it is now more important than ever to show the judge that you are the reasonable parent who will make decisions based on the best interests of your child, and not based on a desire to cause conflict with the other parent.

If you would like to work with one of our experienced Attorneys, please call OWENS & PERKINS at (480) 630-2464 to schedule your free 30 minute consultation.

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