Posts classified under: AZ

Upon written motion of any party pursuant to Rule 35 of the Arizona Rules of Family Law Procedure (“ARFLP”), or its own motion, the Court may conduct an interview with a minor child who is subject of a legal decision-making or parenting time dispute to ascertain the child’s wishes as to legal decision-making and/or parenting time. Before determining whether a Motion for Rule 12 Interview of Minor Child(ren) is appropriate the Court will consider the minor child(ren)’s age and maturity. While there is no set age in making this determination, Courts are reluctant and/or cautious to involve the minor child(ren) in the disputes of their parents. Moreover, if the child is young, the Court will not necessarily feel that a child is of suitable age to make decisions regarding a parent’s requests concerning legal decision-making or parenting time. If the motion is granted, the interview must be recorded by a court reporter or any electronic medium that is retrievable in perceivable form. Additionally, a party may request that the record of the interview be sealed from the public, based upon good cause after considering the best interests of the child.

A Motion for Rule 63 Mental Health Evaluation is a legal document that is filed with the Court requesting that another party be ordered to submit to a physical, mental, or vocational evaluation. Typically, this motion is made when there are allegations of mental, physical, or vocational impairments by one party against another. For example, one parent may feel that the other parent suffers from a mental defect that makes it impossible for him or her to exercise primary physical custody over the minor child(ren). In this motion, there must be a valid reason and good cause showing why this request is being made. The moving party must properly notify the person they are requesting to be evaluated. Moreover, this person may file an objection to the motion. The form must include the following information:

• The good cause showing why the motion should be granted;
• The time of the evaluation;
• The place of the evaluation;
• The manner of the evaluation;
• The conditions of the evaluation;
• The scope of the evaluation; and
• The person(s) that will be performing the evaluation.

After the evaluation is completed, the report of the evaluator can be requested by any party. Additionally, the judge may request that the evaluation be sent to him or her to help in making a decision concerning the issues in the case.

A Motion for Summary Judgment (hereinafter “MSJ”) is a request to the Court asking the Court to make a judgment as a matter of law because:

1. There are no disputed genuine issues of material fact; and
2. In applying the law to the (undisputed) facts, one party is clearly entitled by law to judgment.

In the request, the moving party may ask for a judgment to be issued on the merits of the entire case, or just on certain issue(s). A MSJ in family law follows all of the same rules as defined in the Arizona Rules of Civil Procedure with the exception that it must be filed no less than 30 days before the date of trial, or as such other time frames set by the Court.  In a party’s MSJ, that party should clearly outline their position and add any supporting documents that would help a judge reach the same conclusion. Examples of supporting documentation include:

• Affidavits
• Declarations
• Depositions
• Statements of Facts
• Admissions
• Answers to Interrogatories

Since the party filing a Motion of Summary Judgment has the burden of showing that a judgment should be made summarily (without a trial) it is important that the party include a memorandum of points and authorities to help the judge in determining whether your MSJ should be granted. This memorandum of points and authorities could include applicable state laws and statutes, case law, etc. Once filed, the other party will have a chance to respond to the MSJ. Ultimately, the basis of this motion is to avoid unneeded expense, time, and burden of the parties in civil litigation because one of the parties is entitled to a favorable judgment as a matter of law.

A Motion for Telephonic Appearance is a legal document filed with the Court requesting that a party be allowed to appear telephonically at a hearing instead of in-person. The motion will show good cause as to why the party is unable to appear in-person. The most common reasons for a Motion for Telephonic Appearance include:

• Health of a Party
• Burden of a Party
• Distance of a Party to the Court
• Conflicts in Schedule
• Personal Appearance Unnecessary (ex: 15-minute return hearing)

The party filing the motion will also include the other party’s position on the request. Once filed, the other party may respond to the motion stating their reasons why the motion should be denied.

A Motion to Consolidate is a legal document that is filed with the Court to request that two legal matters be joined and heard together. This type of motion is typically made when two or more matters involve a common child, common parties, or a common question of law. If the Court grants the Motion, then the lowest case number will become the case number for all future filings. This request is made mainly in the interest of judicial economy (avoiding court costs and expense) as well as unnecessary burden and time of the parties.

A Motion to Continue is a legal document that is filed with the Court requesting that the date set for trial, hearing, or conference be changed. When an action has been set for trial, hearing, or conference on a specified date, there must be sufficient grounds and good cause shown in the Motion to Continue the trial, hearing, or conference. No trial, hearing, or conference date will be continued without a formal order by the Court, meaning that you and the opposing party cannot change the date even though you both agree. Common reasons for a Motion to Continue include but are not limited to:

• Conflicts in Schedule
• Health of a Party
• Unavailability of Evidence in Time for the Hearing

If the reason for continuance is due to the unavailability of a party or witness the motion will need to state:

• Why the testimony of the witness is material;
• That the person filing the Motion has used due diligence to obtain the testimony;
• When the moving party found out the witness’ or party’s unavailability;
• The other party’s position on the continuance;
• And that the continuance is not being used just to delay the proceeding.