How do I protect my children from being taken by their mother is she has not filed for a divorce?

Question:

How do I protect my children from being taken by their mother who has left me and them but has not filed for a divorce?

My wife left me and our 2 children about 10 months ago. Neither of us have filed any separation or divorce papers. I have tried to get her see a counselor with me – she refuses, I have tried to make arrangements for her to see the kids – she blows it off. I have had both children all the time. She does not financially or physically care for them. She is living in a home that is also occupied by a man that I have an order of protection against because of threats made to my life, so she cannot take the children to where she is living – the only way she can see our kids is if she comes to my home and she does not like that. I fear that she may just leave with the children and that I have no legal protection. Our children are 3 and 5 years old.

Answer:

You must file a Petition for Dissolution or Legal Separation to get a court order and make sure your wife does not leave with the kids. It appears from the information you provided that you are trying to get her to attend counselling in order to reconcile. You do not appear to be making headway on that issue. Therefore the only option you have to protect the situation is to file the paperwork referred to above. Unfortunately the desire to reconcile is not, at this time, consistant with keeping with your desire to ensure the children come back to you after seeing their mother. Your choices are not ideal but I feel you must make your decisions based upon what is happening now. If circumstances change in the future reconciliation may become possible.

Good luck!

Patrick Sampair
The Sampair Group, PLLC

Offices Valley-Wide:
Arrowhead: 17235 N. 75th Avenue, Suite E-100, Glendale, AZ
City North: 5450 E High St #300, Phoenix, AZ
East Valley: 1830 S. Alma School #114, Mesa, AZ

West Valley: 623.218.1000
Phoenix: 602.997.7717
East Valley: 480.636.1333

To read more of Glendale family law attorney Patrick Sampair’s answers on Avvo be sure to check his Phoenix child custody page, or if you have a question for Mr. Sampair ask him directly at: https://www.sampair.com/

Is there anything I can due to squash this false accusation of their fear toward me?

Question: 

I reside in the State of Az, where I am a peace officer. If my vindictive daughter has me served with a restraining order Brady.

I was told that if get served with an order of protection that I can not posses my on duty firearm and if so I will. Lose my position as a police officer. My daughter and her husband are being very vindictive towards me for calling CPS on them for their drug use and the physical and emotional abuse my grand child was being put through. Is there anything I can due to squash this false accusation of their fear toward me?

Answer:

Since you are an armed police officer and father figure, there probably is nothing you can do to “quash their fear.”

That being said, Fear alone is not grounds to obtain a restraining order. The judge must find that domestic violence either has occurred or is likely to occur.

This sounds like a situation that the judge would likely see the “red flags” if they did try to obtain a restraining order and likely question them at great length. The judge also has the option of setting a hearing to determine rather or not to issue the Order, prior to doing so. You being a law officer, it would likely take very serious allegations for the judge to issue the order based solely on her/their word.

Also, there is a check-box on most restraining orders that says something to the effect of “Brady Applies.” The Brady Act does not apply to all restraining orders.

Grandparents have visitation rights in AZ as well, assuming that they are here. You may or may not want to seek a free consultation with an experienced family law firm regarding grandparent’s visitation rights. As well, in the event that they are successful in obtaining a restraining order, DO NOT rush to the court and request a hearing, but consult an attorney with experience in dealing with restraining orders FIRST.

Good luck!

Patrick Sampair
The Sampair Group, PLLC

Offices Valley-Wide:
Arrowhead: 17235 N. 75th Avenue, Suite E-100, Glendale, AZ
City North: 5450 E High St #300, Phoenix, AZ
East Valley: 1830 S. Alma School #114, Mesa, AZ

West Valley: 623.218.1000
Phoenix: 602.997.7717
East Valley: 480.636.1333

To read more of Phoenix family law attorney Patrick Sampair’s answers on Avvo be sure to check his Emergency orders page, or if you have a question for Mr. Sampair ask him directly at: https://www.sampair.com/

Can I resubmit paperwork for a new court hearing if I didn’t like the outcome of my grandparents rights hearing?

Question:

Can I resubmit paperwork for a new court hearing if I didn’t like the outcome of my grandparents rights hearing if I hire a new attorney?

I lost my trial I had no attorney and the respondent had his attorney.

Answer:

If there has been a continuing and ongoing change of circumstances, you can file again for a new hearing on the matter.

You can not hire an attorney and try again because you didn’t do a good enough job of presenting your case and lost. You can not just hire an attorney and try again. If nothing substantial has changed, then you had your day in court and you lost.

Just trying again could make you liable for the other partie’s attorneys fees and possibly other sanctions.

That doesn’t mean that you shouldn’t consult with an attorney, but your options may be somewhat limited at this point.

Good luck!

Patrick Sampair
The Sampair Group, PLLC
623.218.1000
480.636.1333

Read more of Peoria Divorce Attorney Patrick Sampair’s answers on AVVO regarding child custody law, or if you have a question for Mr. Sampair ask him directly through The Sampair Group’s Family Law Facebook page.

Is a mediated divorce agreement legal before it is filed with the family court?

Question:

Is a mediated divorce agreement legal before it is filed with the family court?

My husband and I retained a mediator to sort out our divorce. I found the whole process very ineffective as the mediator always took the path of least resistance. The final agreement was unfair and incomplete. Unfortunately I signed the agreement and my intention is to hire an attorney to finalize the divorce. I have since found out that he failed to submit any paperwork to the mediator regarding his salary or the business which we part own..

Answer:

In general separation agreements are enforceable in a dissolution of marriage case. However if you can convince the Court that the division of property is unfair then the agreement is not binding on the Court. With respect to spousal maintenace the Court can likewise ignore the agreement if it finds that it is unfair. The business is a community asset, the division of which may be unfair on it’s face depending upon the terms of the separation agreement. You should immediately seek the advice of an attorney. Do not forget to bring a copy of the separation agreement when you see the lawyer. Many attorneys will give a free consultation. You have a very important and somewhat complicated issue which will need attention immediately.

Good luck!

Patrick Sampair
The Sampair Group, PLLC
623.218.1000
480.636.1333

Click here to read more of Attorney Patrick Sampair’s answer’s on Avvo: Is a mediated divorce agreement legal before it is filed with the family court?

My daughter has a son and wants to give me temporary custody. She’s going to live in another state. Do I have to go before a judge?

Question:

My daughter has a son. Wants to give temp custody to me. She’s going to live in another state. Do I have to go before a judge?

NT sure what paperwork is needed . It’s a snap decision on her part and I’m kind of lost on what to do .

Answer:

She can not just give you custody, that requires a judge and will also require notification/cooperation of the father. She can give you a notarized Power of Attorney, allowing you to authorize medical treatment.

It sounds like you and/or your daughter should seek legal counsel in your area.

Good luck!

Patrick Sampair
The Sampair Group, PLLC
623.218.1000
480.636.1333

Click here to read more of Attorney Patrick Sampair’s answer’s on Avvo: Do I have to go before a judge?

 

Would I be charged with kidnapping if I were to move to another state?

Question:

My sons dad has visitation on the weekend but recently my ex husband (not my sons dad) was charged with conspiracy to murder my children. Can I move to a different state or will I be charged with kidnapping?

Answer:

You would not likely be charged with kidnapping, but you run a strong probability of the court awarding the children returned and the children then being awarded to their father.

You must obey the provisions of ARS25-408 and give dad 60 days notice to relocate the kids. If dad objects, there is a strong possibility you would lose a court battle. I have attached a link to ARS25-408.

Read it carefully and I suggest you consult a family law attorney before making any move.

Good luck!

Patrick Sampair
The Sampair Group, PLLC
623.218.1000
480.636.1333

Click here to read more of Attorney Patrick Sampair’s answer’s on Avvo: Would I be charged with kidnapping?

Is there any way I can temporarily suspend child support?

Question:

I am currently modifying child support. A court date was finally set, but it is two months away. I cannot afford to pay what I was paying for the next two months while I wait for the court date. Is there anyway I can suspend child support payments in the state of AZ until the judge makes a judgement? My ex is already getting 50% off all of my checks and I am only able to find part time work at the moment. What are my options?

Answer: 

Until and unless the court modifies the Child Support Order, you must continue to pay the amount that is ordered.

Your obligation to support your children continues regardless of rather or not you have a job at all.

There is no “time out” or “pass” on the child support obligation.

Filing a Petition to Modify your child support probably is the right action for you to have taken if you have had a loss in your income.

HOWEVER, you should aggressively continue to seek full time employment because your Request to Modify may not be granted.

In order to modify the child support, the judge must find that you must have a continuous and ongoing change of circumstances. A temporary period of unemployment likely will not be enough to meet this requirement.

Child Support is based on what a parent is capable of making, not necessarily what they are making.

Good luck!

Patrick Sampair
The Sampair Group, PLLC
623.218.1000
480.636.1333

To read more of Attorney Patrick Sampair’s answer’s on AVVO Click Here: Is there anyway I can temporarily suspend child support?