Robert Barrasso State Bar Conference 6/17/2011

Robert Barrasso
State Bar Conference
6/17/2011
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The Norm: Traditional custody and parenting
time disputes pursuant to Title 25 of Arizona
Revised Statutes. Two parents with equal
fundamental rights.
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According to a 2007 study by the Pew
Research Center, 1 in 10 children in the U.S.
now lives with a grandparent.
The same study suggests there has been a
significant increase in grandparent custody
since the official start of the recession in
December 2007.
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A problem arises in understanding why women
forgo one-third (and sometimes as much as onehalf) of their reproductive lives, a condition
unique in the natural world… what selection
pressure(s) could result in this unique human
adaptation? The grandmother hypothesis posits
that women who stopped ovulating in their
golden years were freed from the costs of
reproduction and were better able to invest in
their existing children and grandchildren (thus
helping to ensure that more individuals with their
menopause inducing genes thrived and had
children themselves).
Shanley, D., Sear, R., Mace, R., & Kirkwood, T. (2007). Testing
evolutionary theories of menopause Proceedings of the Royal Society
B: Biological Sciences, 274 (1628), 2943-2949 .
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Abandonment
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Mental health and physical health problems
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Youth of the parent
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Poverty
AHCCCS Cuts: Approximately 200,000
people will no longer qualify.
Will drop from 100% of Federal Poverty
Level to 50% of Federal Poverty Level to
qualify.
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Substance abuse
Final Report and Task Force
Recommendations by the Ohio Prescription
Drug Abuse Task Force dated 10/21/10
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Lest there be any doubt that this huge
increase is primarily caused by the increase in
prescription drug use, look at this chart:
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In 2008 in Ohio, prescription opioids were
involved in 37% of overdoses compared to a
combination of heroin and cocaine at 33%
The Ohio report is extremely condemning of
the pharmaceutical companies for their
aggressive marketing strategies starting in
the late 90's.
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100,000 population increased by over 300%.
So did the accidental overdose rate.
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Addiction vs. Dependence.
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Increase Functionality?
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Physical, mental or social harm?
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Buprenorphine (ceiling effect, less addicting,
less of a high)
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Methadone
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Slow release morphine
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Co-occurring Disorders.
Example: substance abuse, depression and
diabetes.
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Treatment for depression occurring with
other health disorders has been shown to
improve physical health, compliance with
medical regime and improved quality of life.
“Treating Depression in Medical Conditions
May Improve Quality of Life,” J.A.M.A., 1996;
276 (Dec. 18): 857-858.
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What are the options when parents are either
temporarily or permanently unable to raise
the children but will stay in their lives?
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A parent or a guardian of a minor or
incapacitated person, by a properly executed
power of attorney, may delegate to another
person, for a period not exceeding six
months, any powers he may have regarding
care, custody or property of the minor child
or ward, except power to consent to marriage
or adoption of the minor.
A. 
B. 
C. 
D. 
E. 
Filed in the Probate Division of the Superior Court.
Background check if “unrelated.” DPS fingerprints
and criminal history check.
Based on consent and the suspension or
termination of the ability of the parent to care for
the children (through awkwardly worded as “all
parental rights of custody have been suspended or
terminated by circumstance.”
Most appropriate for cases where parents are
cooperating with third party.
Often a viable solution when grandparents have a
marginal son or daughter with a child, other parent
is gone, and they are reluctant to use force.
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“Because a guardianship based on parental
consent does not terminate the parent-child
relationship, the basis for the guardianship
terminates once the consent has been
withdrawn. A probate court cannot then rely
on findings regarding the best interests of
the child to construe the guardianship.”
Matter of Guardianship of Mikrut, 858 P.2d
689, 175 Ariz. 544 (1993 App.).
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Practice Tip: If you represent the
grandparents, put in a provision that any
hearing to terminate the guardianship will be
with at least 60 or 90 days notice.
A. 
B. 
Applies if a parent is dead (ok to start new action).
Applies if the parents are unmarried (probably in
paternity action).
C. 
Applies if there is a dissolution.
D. 
Does no apply if “happily married.”
E. 
Like changes of custody, if there is to be an in loco
parentis action within 1 year of a previous custody
order, it is under the burden of serious
endangerment (however in all cases there is a burden
of “significantly detrimental,” is there any difference?).
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1. Petitioner gave birth out of wedlock to Sue Ann Doe, born
2/3/09. Petitioner is the mother of Sue Ann and resides at 1234
W. Main St., Tucson, AZ, 85700; she is currently unemployed;
she is domiciled in the State of Arizona.
2. That the Respondent is the father of Sue Ann, his address is
1234 W. Main St., Tucson, AZ, 85700 and he is currently
unemployed.
3. That the parties have never been legally married. The child at
issue has resided at times with the parents since birth at 1234 W.
Main St., Tucson, AZ, 85700.
4. It would be in the best interest of the minor child, Sue Ann if
the parties had joint legal and physical custody. That neither
party should pay child support to the other parent, future or
past, or past child support, expenses for pregnancy, child birth,
testing and other costs (A.R.S. 25-809(c)).
Having read the forgoing stipulation and for good
cause shown; IT IS HEREBY ORDERED as follows:
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1. John Smith is the father of Sue Ann, born 2/3/09
and the court does enter a paternity order.
2. Father and Mother shall have joint legal and
physical custody of Sue Ann. If they cannot agree on
a schedule, they shall petition the court.
3. Neither party shall pay child support to the other
per a separate child support order and neither owes
the other any money for past child support on
expenses for the pregnancy, child birth, testing, or
other costs. A.R.S. 25-809(c).
Petitioners Ralph May and Martha May allege:
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1. Petitioners stand in loco parentis to Sue Ann Doe, born
2/3/09.
2. Sue Ann has been residing with the Petitioners for
approximately 7 months and the biological parents
currently are struggling financially and with health issues
and are unable to provide full time parenting.
3. Sue Ann treats Ralph and Martha as parents and has a
meaningful parental relationship with them and the
relationship has existed for a significant period of time.
4. A.R.S. 25-415 paragraphs 2 and 3 apply.
5. The child’s legal parents are not married to each other
at this time.
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2. It would be significantly detrimental to the
child to remain or be placed in the custody of
either of the child's living legal parents who wish
to retain or obtain custody.
3. A court of competent jurisdiction has not
entered or approved an order concerning the
child's custody within one year before the person
filed a petition pursuant to this section, unless
there is reason to believe the child's present
environment may seriously endanger the child's
physical, mental, moral or emotional health.
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6. The parties stipulate that there is clear and convincing
evidence that it is in the best interest of Sue Ann to be in
the temporary custody of the petitioners Ralph May and
Martha May and that it is not in her best interest to
currently be in the custody of her parents, although it is in
her best interest to spend ongoing, consist parenting time
with them.
7. The court should find that the Petitioners stand in loco
parentis and should award them temporary legal and
physical custody of Sue Ann subject to ongoing, consistent
parenting time with the biological parents as agreed to
between the parties.
8. The court should order that this custody order is
temporary and at any time the biological parents can show
that it is in the best interest of Sue Ann to be in their
custody, then after a hearing, the court shall grant them
custody.
9. Petitioners, Ralph May and Martha May, may be required
to follow CPS requirements.
10. That neither parent should pay child support to Ralph
and Martha May.
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1. Petitioners stand in loco parentis to Sue Ann Doe.
2. Sue Ann has been residing with the Petitioners for
7 months and the biological parents currently are struggling
financially and with health issues and unable to provide full time
parenting.
3. Sue Ann treats Ralph and Martha as parents and has a
meaningful parental relationship with them and the relationship
has existed for a significant period of time.
4. A.R.S. 25-415 paragraphs 2 and 3 apply.
5. The child’s legal parents are not married to each other at
this time.
6. There is clear and convincing evidence that it is in the best
interest of Sue Ann to be in the temporary custody of the
petitioners Ralph May and Martha May and that it is not in her
best interest to be in the custody of her parents, though it is in
her best interest to have regular consistent time with Sue Ann.
7.The court awards Ralph and Martha
temporary legal and physical custody
of Sue Ann subject to ongoing,
consistent parenting time with the
biological parents as agreed to
between the parties.
ADD CHILD SUPPORT PROVISIONS
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The parent or parents fade in and out of the
grandparents’ and child’s lives and at times
do a little better or a little worse.
At times they threaten to take custody. How
do you proceed?
In loco parentis or private dependency or call
CPS?
A. 
In loco parentis does not require much
court oversight, if any.
B. 
No background check.
C. 
No reviews.
D. 
No financial reports required.
A. 
Temporary Orders do not appear to be
contemplated by the statute. In fact an
A.R.S. §25-411 type screening process may
be contemplated. Pending that screening
process and a trial, the bioparents can take
the child.
B. 
No rehabilitative process or services.
C. 
Constitutional validity.
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Private dependencies, as Scott Meyers will
discuss, are very different.