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LawTalk
LawTalk, Attorney and Counselor at Law
Category: Family Law
Satisfied Customers: 27889
Experience:  30 years legal experience. I remain current in Family Law through regular continuing education.
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My question is about a paternity suit (which had not been filed

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My question is about a paternity suit (which had not been filed yet)in which the father, who had just been released from prison, obtained an emergency ex-parte order of restraint signed by a court commissioner. The order stated that I was not to take my son out of the state of AZ as I had intended. The only reason given for the emergency is the fathers, his parents, and the attorney representing him (who I had never met) believed that traveling with our son to the state of Washing would pose irreparable harm and dammage to him. Nevermind that the reason for the order does not meet the criteria needed for an ex-parte order of restraint. My question is to the powers and duties of a court commissioner to have signed it in the first place. In ARS 12-213 it is stated that is prohibited.
Submitted: 4 years ago.
Category: Family Law
Expert:  LawTalk replied 4 years ago.
Good morning,

I'm sorry to hear of your dilemma.

The specific code section that you are referring to does not prevent an appointed Commissioner from issuing an Order preventing you from taking your child from the state. It would only prevent him/her from issuing an ex-parte Order which deprives you of custody. Under the law, preventing you from vacationing outside the state with your child is not depriving you of custody. It is merely placing restraints on your right to remove the child from the state.

12-213. Commissioners in certain counties; appointment; powers and duties; salary

A. In counties having three or more superior court judges, the presiding judge may appoint court commissioners to serve at his pleasure who shall have such powers and duties as shall be provided by statute or by rule of the supreme court, save and except such commissioners are expressly prohibited, except in default hearings, from making any ex parte orders which would deprive any person or persons from custody of their child or children, or change of counsel of attorneys, or deprive any person of their liberty, or deprive any person or entity from their property or the use thereof, or any injunctive relief.

B. Commissioners appointed under subsection A shall receive an annual salary set by the presiding judge which may not exceed ninety per cent of the salary of a judge of the superior court. The commissioner's salary shall be a county charge. An appointed commissioner shall be a duly licensed member of the state bar of Arizona and shall have engaged in active general practice of the law for a period of not less than three years next preceding his appointment.


You certainly have the right to appeal this Order, and based upon your circumstances, presuming that all you want to do is to vacation outside the state, I would expect the judge to stay the order and allow you to do that. However, if your intent is to relocate outside the state with your child, the court can mandate that you petition for a court order allowing you to do so at this point---now that paternity looks to be an issue, having been placed before the court by the father.

I wish you and your child the best.

Best regards,

Doug

Customer: replied 4 years ago.
Paternity had not been established at the time of the order. The father had just served a prison term of three years which is the age of our child at the time. The fathers filing was at the request of his parents who then funded the case (I was pro-se and the father was awarded sole custody) I guess I considered traveling or even moving with my son something I was at LIBERTY to do. I'm not sure exactly what injunctive relief means however I was the only legal parent to this child at the time. The state of Washing in and of itself is not pose a threat of irreperable harm and damage anyway.
Expert:  LawTalk replied 4 years ago.
Good morning,

Paternity need not be established prior to the order in this case. The mere fact that the paternity issue is placed before the court as part of the motion for the Order, is sufficient.

I agree with you that the state of Washington, in and of itself, does not pose a threat to your child. However, there is a difference between your liberty to travel, and that of your child's liberty. Both parents have a say in where the child will reside, and ultimately, the court will rule where the parents can not agree.

You really need to get an attorney at this point to assist you in petitioning the court to allow you to relocate with your child. Keep in mind the following when submitting your argument as to why you should be allowed to move with your child.

Some of the issues the court looks at when a parent seeks permission to relocate out of state with their children are as follows:

1. Whether the move would result in a better quality of life the children
2. The extent to which the remaining parent exercises visitation rights with the children.
3. Whether that parent is willing to allow their children to spend longer, though less frequent, visits with the other parent, if the court approves the relocation.
4. Whether the child will be in close proximity to extended family members at the new location.
5. The quality of education and the quality of life the child would have access to at the new location.
6. That the relocating parent is prepared to pay for the increased expenses associated with the children’s traveling to and from visits with the other parent.
7. And, that the relocation is not simply an attempt to limit the other parent’s time with the children as some sort of punishment or attempt to be controlling.
8. Always, the primary consideration for the court is whether the move would be in the best interests of the children.


I wish you and your child well.

Best regards,

Doug

Customer: replied 4 years ago.
One last question. He had a great lawyer vs me alone for trial. The only witness was an ex-girfriend of his who I hadnt associated with in years but basically she and I don't care foe one another. I was unable to form my questions to her properly because i'm not a lawyer. BTW she was in court telephonically from jail (drug charges). The only things I had going for me was no criminal history, no allegations of bad parenting neglect /abuse, and the recomendation of our custody evaluator that I retain physical custody and we share jointly. What he had going for him was an attorney, a well to do family, and a bitter (towards me) hateful ex who said under oath that she had seen me doing drugs. This I'm sure got het a few bucks on her books for food in jail. Anyway I wasnt asking her questions properly so the judge said " we'll obviously you don't know how to do this so were not going to bother with a trial." " I'm going to award sole custody to the father." Can he just do that? I guess so.
Expert:  LawTalk replied 4 years ago.
Good morning,

The acting judge is not obligated to act as a lawyer for you, and when you were unable to elicit the proof that you needed to win your hearing, the judge ruled against you.

There was nothing that you could have done about it if you were not prepared to bring in your own attorney, I'm afraid.

You can always hire an attorney to petition the court to modify the custody order.

I wish you well.

Thank you very much for having allowed me to assist you. It would be greatly appreciated if you would click the green Accept icon so that I can receive credit for having assisted you.

Best regards,

Doug

LawTalk, Attorney and Counselor at Law
Category: Family Law
Satisfied Customers: 27889
Experience: 30 years legal experience. I remain current in Family Law through regular continuing education.
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Customer: replied 4 years ago.

I just googled this site to find that many people consider it fraudulent and have been double charged at least. I know I hit the accept button once before. If that didn't reflect on your end then maybe you should look into why that is. I will however not choose to accept twice as it would seem likely I'd just be paying twice.

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