Teenagers who take sexually explicit photos or videos and text them to their friends may subject the sender and receiver to possible child pornography charges.
Our child pornography laws were designed to deter, discourage and to punish hard core distributors, predators and sexual deviants from the sexual exploitation of children.
“Teen Sexting” is a foolish and reckless act conducted by teens and is distinguishable from these hard core predators. Recently however, some prosecutors have broadly interpreted the “possession of sexually explicit images of a minor “to include juveniles who take naked pictures of themselves and send to their friends.
I am confident no parent would condone or encourage their child engaging in sexually explicit texting and probably would discipline them for doing so. However, I am also confident most parents do not want their child being prosecuted and incarcerated for sexually explicit texting to other teens.
Possession of child pornography is a serious felony with mandatory prison time. Juveniles are being suspended and even expelled from school for sending or having explicit images in their possession. Teens are now being charged with distribution of child pornography when they send or forward to others sexually explicit, lewd or naked images of other minors.
This is a serious problem but, let’s not overreact with our legislatures and ruin a juvenile’s life for exercising poor judgment. Let’s not sentence these offending non predatory teens to lifetime probation and registration as a sex offender.
Perhaps these juvenile matters can be prosecuted in the juvenile court system rather than adult felony court. Schools can also educate and deter this kind of misbehavior.
And finally, parents should be the gatekeepers of their children’s lives while they are under the age of majority. Our world is rapidly evolving into a technology world we do not know. Smart phones are truly amazing but, people do dumb things with them. And depending on what image is captured and sent, the consequences legally can be far reaching. Parents beware, and you young kids, don’t do dumb things. Images or words you text to others can end up all over social media, can lead to bullying, ridicule and now even felony charges.
If you or anyone you know are having legal issues relating to this article or any other criminal law matters you need our help with, call us today at (480) 833-1113.
Attorney Profile: Paul S. Rowley
Family Law is evolving . Millenials are the driving force. (Millenials are those reaching adulthood around the year 1980-2000). The actual definition of marriage is at the forefront. It is called the Beta marriage. So what is a Beta marriage? Beta was the latest release in the software cycle. You may have heard the terminology “a Beta Test”.
In a Beta marriage, you “couple” (a strange word to use in such a special and sacred relationship such as marriage) for two years. Basically, a two year trial period. At the end of two years, you can just “uncouple” or alternatively you can formalize and really commit, not just try each other out.
Surprisingly, 43% of the millenials support the notion of a two year Beta Trial Marriage. If they “uncouple” after the two years there would be no divorce, no paperwork! Not good for a divorce attorney! But, really bad for the couple.
37% of milenials favor the Real Estate Marriage. Just like a mortgage, we obtain a marriage license for 10, 15 or 30 years or an adjustable term so we can bail at any time! Upon expiration of the term, the marriage is uncoupled. No divorce, no attorneys!
The Presidential marriage which 21% favor, is a four year arrangement and then poof! You are uncoupled or you can recommit but, only for four more years.
And 10% even favor the Multiple Partner Model. Marriage can be with more than one partner, each who fulfills some need in your life!
Statistics show millenials cohabitate more, delay marriage until later in life, and even believe divorce is a positive alternative to marital difficulties.
From a legal perspective, I can tell you the unintended consequences of redefining marriage will be disastrous.
If you are married, make it work if you can! If you are not married, don’t be discouraged. If someone suggests a Beta marriage, run! That person might just have a problem with commitment!
Divorce is always hard on both parents, the children, extended family, and your pocket book. Adding different categories of marriage to our statutes like Beta, Real Estate, Presidential, and Multiple Partner is a legal train wreck.
If you do have family law issues that require Court or legal involvement, give us a call we have experienced divorce and family law attorneys here to help you. But if you can hang in there, that is even better!
Attorney Profile: Paul S. Rowley, Divorce & Family Law Attorney
Divorcing Parents – Avoid Alcohol Abuse, Illegal Drugs, or Excessive Prescription Drug Use #DivorceAttorney
If you as a parent have filed for divorce or are seeking sole or equal decision making of your minor children, the court must decide what is in the child’s best interests, if you and your spouse cannot agree.
If your spouse alleges you abuse alcohol or drugs, most likely the court will require you to be drug tested. Usually this is a urine test but could also include a hair follicle test. Hair follicle testing can detect drug usage as far back as 90 days, whereas a urine test only detects drugs in the past week or so. If you are ordered to do a hair follicle test and you shave your head or body hair it will be impossible to test and it will look like you have something to hide! At least 1 ½ inches in length is required for testing purposes.
If you have used drugs in the past few days you could test positive in the urine test and negative in the hair follicle test. Recently we have been seeing parents who abuse opiates and prescription pain medication, like vicodin or percocet. Methamphetamine is also commonly detected. Even if you take a diet weight loss medication, it could show positive for amphetamine. Alcohol and marijuana are also detectable in a urine test.
So if you are a parent, whether divorcing or not, if you use:
- phencyclidine, or
and your fitness to have custody of your children is questioned, use of any of these drugs can trigger a loss of legal or physical custody. Also, if you test positive the court may require you to test randomly for several months until you are free and clean of drugs in your system.
- Avoid all drug use unless it is prescribed by a physician and you take it as prescribed.
- Never drink and drive.
- Never abuse drugs and drive.
Several states have legalized marijuana use, but if you are trying to keep custody of your children, being under the influence of legal marijuana is not a great defense when it comes to the “Best Interests” of your child.
We are experienced divorce attorneys in Mesa, AZ, and we can help you. Call us if you have any questions whether it is for family law, criminal defense, or any other legal situation you may be facing.
Attorney Profile: Paul S. Rowley, Divorce & Family Law Attorney
A recent survey by Avvo.com revealed that for those seeking information on divorce, one of the primary concerns was: How much is this going to cost me?
Of those survey respondents without children, nearly 60 percent said that the cost of the proceedings was the No. 1 concern they had for the divorce process. Division of property ranked No. 2. Respondents with children cited their No. 1 concern as child custody, with the cost of the divorce ranking at No. 2.
Our Mesa divorce attorneys recognize cost as a legitimate concern. Some estimates put the national average cost of divorce at around $15,000.
Of course, the cost of a poorly executed divorce may be incalculable. Fortunately, there is a lot you can do in preparation for the filing that might help to reduce your costs.
There is a wealth of information online regarding “do-it-yourself” divorces. These sites can make it sound a lot simpler than it is. Nothing will replace the help and advise of an experienced Arizona divorce attorney. This is an emotionally wrenching time, and there are a lot of practical concerns to consider. These issues are even more complex if you have children, have been married a long time or have amassed a fair amount of property or other assets during the course of your union.
A lot of people think that if they can agree on the basics, they don’t need to worry about involving attorneys. We understand the reluctance to enter litigation. But consider what you may not have considered: Division of retirement accounts, tax implications, division of debt, potential concealment of debt, and health care considerations. What if one parent decides to move out of state with the children? Failure to address any or all of these elements can end up costing you dearly in the long run.
You might save a few bucks on the divorce lawyer now. However, an unfair tax burden could mean you lose out on thousands of dollars. And once a divorce agreement is finalized, it may be an arduous – and expensive – process to go back and change it.
So what does all this mean for you?
When you begin contemplating divorce, start setting some money aside. You don’t have to tell anyone. (In fact, you should probably refrain from telling your spouse.) Just quietly begin putting a little away here and there. If you never have to use it, that’s great. But if the time comes and you need to get out, you will be much better prepared.
Along these same lines, work on establishing good credit in your own name. It can be very tough for someone who is newly single with no recent work history and no real credit to strike out on his or her own. If this sounds like your situation, make this a priority. Credit bureau Experian has some good advice about how to do this responsibly.
And finally, you’ll want to put some time into researching law firms and attorneys to find a divorce lawyer who is going to be the best fit for you. One of the advantages of working with Rowley Chapman & Barney is that we have experience not only in the areas of divorce and family law, but also in bankruptcy, estate planning, real estate and civil litigation. Because divorce has the potential to affect every aspect of your life, having the backing of a firm with that kind of knowledge and experience can be a true asset.
If you are seeking a divorce in Arizona, contact our Mesa divorce attorneys at (480) 833-1113.
Two Divorce Trends Identified in the Legal Marketplace, Sept. 10, 2013, By Jeff Landers, Forbes.com
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Is there an advantage to filing first in an Arizona divorce? Sept. 28, 2012, Mesa Divorce Lawyer Blog
Senate Bill 1127, called the “Legal Decision-Making and Parenting Time” law, officially went into effect on Jan. 1, 2013.
Our Mesa child custody attorneys know that the new measure updated a number of old statutes pertaining to the way the courts approach the issue.
The law encourages parents to enter into joint parenting time agreements, as opposed to one parent being granted the majority of the time while the other is relegated to slots every other weekend.
It also specifically forbids the court from handing one parent a preference in custody matters solely on the basis of the parent’s or child’s gender. Of course, this remedy was specifically enacted as a means to address the court’s well-known practice of favoring the mother in matters of child custody, particularly custody disputes involving female children.
The law also goes out of its way to label custody terms in a way that more accurately reflects an equitable process.
For example, “physical custody” is no longer called “physical custody.” It is now referred to as “parenting time.” Further, “legal custody” is now referred to as “legal decision-making authority.” So a parent who has legal decision-making authority has the power to make decisions not just about the child’s education and health care, but also about personal care matters, such as ear piercing and hair cuts.
Additionally, there are sanctions for parents who are deceptive to the court or attempt to delay court proceedings. Primarily, those sanctions would be in the form of mandatory fines. Previously, those fines had been optional.
Additionally, any time a parent wishes to move a significant distance from his or her current residence, they must now abide by much stricter notification requirements.
While the state supreme court doesn’t keep track of how judges rule in child custody cases, we do know that outside groups have indicated that joint custody has been on the rise over the last decade-and-a-half. Researchers reported that in 2002, joint custody was awarded about 5 percent of the time. By 2007, it was awarded 15 percent of the time.
There are no further updated figures, but we anticipate the new law will prompt that figure to continue to rise. In our own experience anecdotally, we know that judges have been more inclined in recent years to award joint custody.
No longer can we say that mothers have the upper hand in custody cases. This is partially a reflection of a larger cultural shift, wherein fathers are taking a much more active role in parenting their children and being involved in their lives.
As such, many other states have passed similar measures in recent years. However, while many of those states have mandatory minimum parenting time requirements for each parent, Arizona gives judges a great deal of discretionary authority to determine parenting time arrangements.
Exceptions for parenting time are made for situations where abuse is reportedly involved.
The new law didn’t change much for those parents who already had an arrangement in place. However, those seeking a change in custody arrangements would have their cases considered under the new parenting time laws.
Contact our Mesa parenting time lawyers at (480) 833-1113.
New child custody law begins Jan. 1, Dec. 25, 2013, By Alia Beard Rau, The Republic
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When Talking Child Custody and Parenting Time, Should Your Ex-Spouse’s Significant Other Be Around Your Children? July 1, 2013, Mesa Child Custody Lawyer Blog
While all 50 states have some kind of no-fault divorce option, Arizona is one of those that offers it unconditionally, without requiring a period separation and absent the option of seeking a fault divorce.
Our Mesa no-fault divorce attorneys know that there are a number of advantages to this system. But what we also want people to understand is that “no-fault” does not mean that marital misconduct will never play a role in your divorce and family law proceedings.
This is important to know because we need for you to prepared for the possibility that issues like infidelity, financial irresponsibility or substance abuse could become an issue in your divorce.
Likewise, if you are the one who has suffered in the marriage as a result of these actions, you may have an advantage at certain points in the negotiating process.
The whole idea of a no-fault divorce is to make it easier for married couples to split. There is no need for either one of them to prove that the other person did wrong in order to have the divorce formalized.
When you file for a no-fault divorce in Arizona, you are simply stating that the reason for the separation is not one that is recognized by the state. It’s enough to say that you had irreconcilable differences, without going into detail about those differences.
There are a lot of states in which you would have to live separately from your spouse for a period of time before you could file for a no-fault divorce. Arizona doesn’t require you to wait. You don’t need the consent of your soon-to-be-ex.
Some of the advantages to this include:
- Empowering abused spouses to leave a dangerous situation;
- Less conflict during divorce, which can mean less harm to children involved;
- Reduction of caseloads in family court;
- Shortens the length of time between filing and finalization.
The issue of whether you committed adultery probably won’t play a role in how much you are ordered to pay in support, as the court’s goal isn’t punishment.
However, let’s say the issue before the court is one of child custody. The standard the court will apply is the “best interests of the child.” In deciding who the child should spend more time with, the judge may factor the moral standards of both the former husband and wife. If one of those individuals has a proven history of lying and deceit (i.e., in conjunction with concealing an affair), that might become an issue.
Domestic violence, too, would become an issue in terms of child custody. A spouse with a documented history of physical abuse toward a household member is in a weak position to ask for custody of a child.
Another example would be in the area of property division. With Arizona being an equitable distribution state, the court is going to look at a division of property and assets that is fair. That doesn’t always mean a 50-50 split. If you have one spouse who has wasted a fair amount of the family savings on, say, gambling or a drug addiction, the court may factor that in when determining how much to award both sides.
Unlike in a civil case, you won’t find a family law judge awarding punitive damages, even to spouses who have suffered some of the worst cases of marital misconduct. However, there are ways in which the court will seek to even the playing field that has resulted from wrongdoing within the union.
If you are interested in pursuing a divorce in Arizona, contact our Mesa family law attorneys at (480) 833-1113.
Child Custody: The Divorce Files, September 2013, By Joseph Cordell, Askmen.com
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When Talking Divorce – No Fault and Default – Not the Same Thing, #DivorceLaw, Oct. 9, 2012, Mesa Divorce Lawyer Blog
When convicted kidnapper and rapist Ariel Castro pleaded guilty earlier this summer to hundreds of crimes involving three victims over the span of a decade, he asked the judge that he be allowed to have visitation with a child he fathered with one of his victims.
While such a request may seem outlandish, the fact is that in Ohio, just as in Arizona and 29 other states, convicted rapists are permitted to sue for custody and visitation rights to the victim’s child. The Rape Abuse & Incest National Network (RAINN) reports that 1 out of every 6 women in the U.S. will become a victim of rape at some point in her life. A study by the American Journal of Obstetrics and Gynecology estimates that annually, some 25,00 to 32,000 pregnancies are the result of rape. Even by low estimates, about one-third of those women who were raped and became pregnant as a result kept their child.
Our Mesa child custody attorneys understand that new legislation was introduced in late July that would provide monetary legal incentives for victims who wish to fight or terminate the custody rights of their attackers.
H.R. 2772, sponsored by Rep. Debbie Wasserman Schultz (D-FL), is also called the Rape Survivor Child Custody Act. The measure purports that men who father children through the act of rape should be barred from visiting or having custody of those children.
Schultz cited the Castro case as a clear example of why such a measure is necessary.
Few would disagree, particularly in cases like the Castro crime, where the evidence was overwhelming and a conviction was forthcoming. A rapist who pursues parental or custody rights would in effect force the survivor to have continued interactions with him, which can have a detrimental effect not only on the mother, but the child as well.
Where this may get a bit tricky is that rape is a vastly under-reported crime. Even those that are reported don’t always result in a conviction. But should family courts simply rely on the word of the alleged victim? The bill cites the U.S. Supreme Court case of Santosky v. Kramer, which holds that the process for terminating or restricting parental rights. This decision held that the standard was establishment of “clear and convincing evidence” that would satisfy due process for such allegations.
In other words, a criminal conviction would certainly help, but it wouldn’t be necessary so long as the victim could present clear and convincing evidence of how the child was conceived.
As it now stands, only six states have statutes that specifically allow rape survivors to petition the court for termination of parental rights of a rapist based on the clear and convincing evidence standard.
Still, even if a woman weren’t able to prove that the child in question was the result of rape, judges do have the power to prevent fathers who are unfit from seeing their children. Our attorneys are committed to helping you fight for the best interests of both you and your child.
Contact our Mesa family law attorneys at (480) 833-1113.
Child custody rights for rapists? Most states have them. Aug. 1, 2013, By Ed Payne and Ted Rowlands, CNN
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While the meaning of the word may be interpreted subjectively by the child and remaining parent, our Phoenix child custody attorneys know that the term “abandonment” has a very specific and narrow meaning under Arizona law.
This definition was recently underscored in the child custody case of Calvin B. v. Brittany B., decided in June by the Court of Appeals State of Arizona Division One. In this case, the court held that one parent’s efforts to restrict the child custody/visitation rights of the other can’t be used as evidence to support an argument for abandonment in a petition for termination of parental rights.
According to court documents, here’s what happened:
Calvin and Brittany were married in the fall of 2006. Their son was born the following December. Just three months later, Brittany filed for divorce, which was granted three months after that.
The divorce decree granted Brittany sole legal and physical custody of the child, though it allowed Calvin to have liberal visitation as his schedule would allow, with the understanding that such visits were to take place at Brittany’s residence, in her presence. Calvin was not required to pay child support, but he was ordered to provide financial assistance “as required by Brittany.”
The following summer, Calvin petitioned for a child custody modification that would allow joint custody, arguing that Brittany only allowed him to see the boy once or twice a month for less than a half hour at a time. However, 10 days after that petition was filed, Brittany filed a petition requesting an order of protection against Calvin. She alleged that when she was pregnant two years earlier, Calvin had kicked her and slammed her head into a wall. She alleged that since that time, Calvin has threatened her constantly, including a specific threat made that spring to strangle her.
The court ultimately granted Brittany’s petition and held that Calvin was to have no contact with her. Any visitation with his son would have to be facilitated and in the presence of Brittany’s parents. Brittany asked that the court dismiss Calvin’s petition for joint custody, as he had failed to complete a parenting education program, as provided by the divorce decree. She also alleged he was a substance abuser with severe anger problems who had given her a total of $600 to care for the boy since he’d been born.
The court ordered Calvin to complete the parenting course, and stated that Brittany did not have to allow visitation until he had done so. He was also required to pay $265 monthly, as well as $1,500 to cover the cost of a surgical procedure for the child.
However, Calvin did none of these things. Brittany ended the visits. Calvin attempted to resume them, but this resulted in him twice being arrested for violating the order of protection still against him.
Then two months before the protection order was to expire, Brittany requested the court terminate Calvin’s parental rights on the basis of abandonment, as he had failed to have any meaningful contact with the child.
A Superior Court judge sided with Brittany, terminating Calvin’s parental rights, saying he had failed to promptly and persistently grasp the opportunities to develop a relationship with his child or assert his legal rights.
However, the appellate court disagreed and reversed this decision.
A.R.S. Rev. Stat. 8-537 governs child custody termination adjudication hearings. It holds that a decision of this magnitude must be based on “clear and convincing evidence” of the allegations made therein. A.R.S. 8-5333(B)(1) defines abandonment as:
“The failure to provide reasonable support and to maintain regular contact with the child, including providing normal supervision. (It) includes a judicial finding that the parent has made only minimal efforts to support and communicate with the child. Failure to maintain a normal parental relationship with the child without just cause for a period of six months constitutes a prima facie evidence of abandonment.”
It’s not measured by parental intent, but rather by parental conduct.
In this case, the court found that clear and convincing evidence was lacking because Brittany had repeatedly blocked visitation from Calvin. Specifically, the justices determined that contrary to the mother’s allegations, the father had throughout the child’s life sought active involvement, even though he was prevented at many turns from engaging in this. Even though he failed to uphold certain court-ordered obligations, he still sought to visit with his son.
As such, the court ordered that his parental rights be restored and the case was sent back to the lower court for reconsideration.
Contact our Phoenix child custody attorneys at (480) 833-1113.
Calvin B. v. Brittany B., decided in June by the Court of Appeals State of Arizona Division One
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However, our Phoenix divorce lawyers know that absent proper planning, the whole process can quickly unravel into a serious financial mess too, particularly if you are nearing retirement age. In fact, a poorly-planned divorce could even derail your retirement completely.
The U.S. Census Bureau says that between 1990 and 2010, the number of divorces among individuals aged 50 and older has doubled. By 2010, one in four divorces involved at least one party who was over the age of 50.
It’s called the “gray divorce,” and there are many theories as to why it’s happening. Part of it is the product of longer life spans. Some of it is the product of more women being financially independent.
Regardless of the reason, it can be economically devastating for certain folks – particularly women who may have been out of the work force for several decades in order to raise their children.
Divorce in general forces both parties to reduce incomes, work more years than previously planned or require you to get a part-time job through your retirement.
A recent study by ING U.s. found that people who are divorced are less likely to feel financially prepared for retirement, as compared to couples who have remained married. On average, divorced individuals say they have saved $11,000 or less for retirement. On average, ING found that women had $34,000 less than men in total retirement savings.
Men, on the other hand, have had to delay retirement as they dip into savings to cover costs for court-ordered alimony or certain household expenses for their ex-spouse.
Certainly, divorce is going to have a negative impact on your finances. But our experienced family law attorneys are well aware that there are numerous ways to minimize that impact.
First, one mistake many people make is heedlessly choosing the house over other financial assets in a divorce settlement. A lot of people simply assume that a house is one of the best assets to maintain in a divorce, but this isn’t always the case. When you compare it to, say, retirement savings, a home may have less value when you consider the ongoing and sometimes unexpected expenses of home ownership. Plus, you don’t know whether that home is going to retain its current value. A house may not allow you the financial return necessary to fund your retirement.
A second mistake too many people make is ignoring what may be the tax implications of retirement funds. For example, let’s say one spouse is given the $450,000 401(k) while the other party is given the $450,000 Roth IRA. On the surface, it seems equal. It’s not because each is taxed differently, and in the end, the Roth IRA is going to result in bigger returns.
Finally, far too many people make the mistake of withdrawing too much from their retirement funds before they actually retire. Bear in mind, if you are 50 years-old, you are going to need these funds to live on for the next 20 or 30 years. “Borrowing” a little here and there has the potential to significantly impact your future lifestyle.
The best way for divorcing parties to prevent significant havoc on retirement futures is to plan well in advance with the help of an experienced Arizona divorce lawyer.
Contact our Mesa family law attorneys at (480) 833-1113.
4 Divorce Mistakes That Can Derail Retirement, Aug. 27, 2013, By Marilyn Timbers, Next Avenue
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Our Maricopa County divorce attorneys understand that there were two primary points of contention:
- An earlier child support agreement.
- The ongoing disparaging comments both parties were making publicly about one another.
First, let’s talk about the child support issue. In the state of Arizona, A.R.S. 25-501(A) stipulates that both parents – custodial and non-custodial – must provide “reasonable support” for their minor children. This is not an optional obligation. To ensure that children’s welfare is prioritized in these cases, the courts always look at them through the lens of, “What is in the best interest of the child?”
Of course, that’s a highly subjective measuring stick. But generally, it means that child support obligations will be given priority over all other financial obligations throughout the proceeding.
Every case is different, but the guidelines hold that generally, a parent will pay support that is approximate to what he or she would have spent on the children had the parents remained together. Factors that are considered are employment and income of both parents, prior standards of living, costs of health care and child care and costs associated with shared parenting time.
In the case of Nash, who left the Phoenix Suns last year to play for the Los Angeles Lakers, the two parties have been battling for the last three years. A previous divorce settlement between the two resulted in Nash, the non-custodial parent, making a one-time, lump-sum child support payment of $5 million for their three minor children.
However, a three-judge appellate panel recently determined that the lower court’s decision to let Nash off the hook for further support payments was erroneous. The court overturned this agreement, finding that the lower court failed to properly consider the state’s basic guidelines for the determination of child support, as well as a legitimate request by Nash’s ex-wife for an increase in payments.
So that aspect of the case will go back to the lower court for reconsideration, and Nash will likely end up paying a fair amount more in monthly child support obligations.
However, the appellate court upheld the lower court’s earlier ruling, holding that both parties must refrain from publicly disparaging one another. Amarilla had argued that such a ruling interfered with her First Amendment right to exercise free speech.
The court had said that Amarilla’s Twitter account had been used to dispense “biting criticism” of her ex after their split. The court said that the order does not violate her right to free speech because both parties agreed to limit their speech, per their joint custody agreement.
As such speech might ultimately be damaging to the children, the court ruled, the parents have an obligation to limit it.
This case reveals that even when a divorce is granted, the case may not be over. When children are involved, there are likely to be ongoing issues, and it may at some point be necessary to return to court to have those issues addressed, particularly when they impact the well-being of your child.
We’re here to help.
Our Maricopa County divorce attorneys may be reached at (480) 833-1113.
Steve Nash Should Pay Child Support in Divorce With Alejandra Amarilla, Appeals Court Rules, July 23, 2013, By Ray Stern, Phoenix New Times
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