Child Custody Article


How to Represent Yourself in Maricopa Family Court Part 2: Default Through Discovery

How to Represent Yourself in Maricopa Family Court Part 2: Default Through Discovery


In Part One, we discuss what to do prior to filing your family court action, determining your objectives and strategy, how to draft your initial pleadings, how to respond, and whether to request a motion for temporary orders. In Part two, we will discuss how to represent yourself in Default Proceedings and through Discovery.


Default

In the event you have served a petition on the opposing party and they do not respond, you have the opportunity to file for a default judgment. If the opposing party lives within the state of Arizona, they have 20 days to respond before you can initiate the default proceedings. If they are out of state, they have 30 days to respond. Another wrinkle to consider is that there is a 60-day waiting period before a judge may issue a divorce decree after you file. So, while the default rules allow you to ask for a default after 20 or 30 days, the Judge will not sign a decree of dissolution prior to 60 days after the service of the petition.

In the event that the proper amount of time has passed, you can prepare an Application and Affidavit of Default. Simply create an account to access all of our professional legal documents. Make sure that you bring two copies with you when you go to file the documents. You will need to immediately mail, hand deliver or serve a copy of the documents to the opposing party. They then have an additional 10-day grace period to respond to your initial petition. After the 10 days has passed, you can call the court to schedule a default hearing. In the event that you do not have children, you can submit your documents via mail to the court and await the Judge’s signature without scheduling a hearing.

To get a default judgment, you will need to submit a/an:

• Completed Decree of Dissolution
• Legal Separation or Order of Annulment and two copies
• Parent Information Program Certificate (if it has not already been filed)
• Signed Parenting Plan and two copies
• Completed Child Support Worksheet and two copies
• Order of Assignment and two copies
• Completed Judgment Data Sheet
• Wage information/pay stubs for both parties
• Other financial information such as childcare costs, medical insurance premiums etc.
• 9X12 envelope addressed to the other party with 3 standard current postage stamps and
• Copy of any prior Child Support Orders/Birth certificate for children

A default hearing is very informal. The Judge will ask you questions about what you have included in your decree. The Judge may make changes to what you have included in your decree. Also, you cannot put anything in your decree that you did not include in your petition. The other party is entitled to notice of everything that may end up included in the final paperwork. Alternatively, if you do not have children, you can submit the paper documents to the court for the judge’s signature. If you elect to go this route, make sure you deliver a copy of your documents to the judge’s chambers.

Helpful hint: Consider getting the phone number for the judicial assistant so that you can make follow up calls regarding the status of your documents.

Discovery/ Mandatory Disclosures

In Arizona, evidence that is not properly disclosed cannot be used in trial. On top of that, Rule 49 of the Arizona Family Law Rules of Procedure lays out what you are required to disclose even without the other party asking for the documents. In reality, self represented litigants rarely follow all of the rules and rarely disclose everything that they need to under rule 49. But this list will help you determine what you may want to request and what you are required to disclose. The most important and non-negotiable mandatory disclosure is the Affidavit of Financial Information (AFI). If your case involves child support, spousal maintenance or attorneys fees, you and your ex will need to submit a completed and accurate AFI. This is one of the only disclosure documents that must be filed with the court. Most disclosure documents are handled between the parties.

Rules of Evidence

In family court, the rules of evidence are relaxed unless one party files a “notice of strict compliance.” Under the relaxed rules, all relevant evidence is generally admissible unless it is repetitive or abusive. Generally, if it is relevant to the issues, a Judge will allow you to use the evidence. If a notice of strict compliance is filed, all of the rules of evidence including hearsay and authentication rules apply. If you are going up against an attorney and they have filed the notice, we suggest you seek advice from an attorney. He or she can help you properly prepare your evidence for submission to the court.

Interrogatories

A frequently used and very useful discovery tool is interrogatories. You can send both uniform and non-uniform interrogatories to the opposing party. Interrogatories are questions that must be responded to in writing by the opposing party within 40 days of receipt. This locks in the answer of the opposing party and provides valuable information you can use in making your case. As an example, the uniform interrogatories ask for the party to list all bank accounts, assets, insurance policies, pending litigation claims, etc. If your case has hotly contested issues, consider using the uniform interrogatories as a fantastic discovery tool for your case.

Request for Production of Documents

Like the interrogatories, a Request for Production of Documents asks that the other party deliver to you the documents you are requesting within 40 days of receipt. You can ask for any and all relevant documents including electronic accounting files, criminal convictions, drugs tests, even medical records. This is a fantastic tool to accompany interrogatories.

Request for Admissions

Requests for admissions are used less frequently than the two tools above, but can provide valuable information and insight for less money than the cost of a deposition. In a request for admissions, the opposing party is asked admit/deny questions and must either admit or deny the questions that you ask.

Depositions

Arguably, depositions are the most powerful discovery tool available to you as a litigant. A deposition allows you to ask any question that you would like of the opposing party (with few exceptions) under oath and on the record. This gives you the ability to test out questions and determine the opposing party’s demeanor and ability to answer difficult questions. It also locks down their story. You can depose both parties and witnesses by serving a “Notice of Deposition” upon the party or witness(es) you intend to call. Then, you will want to schedule a court reporter to take the deposition. Give yourself enough time to get the written transcript well before trial.

Subpoena

A subpoena allows you to get documents from third parties such as banks, or command a witness to attend a hearing. A subpoena must be issued by the clerk of the court and served upon the intended recipient.

Each discovery tool can help you to achieve a given objective. As always, know your strategy and what you must prove to determine which tools to use. Consider the cost benefit analysis of each decision and take advantage of either a certified legal document preparer, lay legal advocate, or an attorney for further information.

Contributing Attorney Writer: Billie Tarascio litigates family law and domestic violence cases at Modern Law.


Comments:

QUESTIONS

  • How do you give the other parent the 60 day notice to be able to move? Do you serve them or go to the court to file a paper?
  • f I have a 10yr old son ,the father has never been in his life. I do not ask for child support.I want to get full custody rights. Whats the process that i need to take?
  • my ex filed for a order of protection and was granted it against me for him and my kids the year is now up and i need to know how to get my babies back i tried to file to get the order dropped but could not get to the courthouse to do it now i havent seen my kids in 12 months please help
  • I am single parent (mother) with an adopted child which is now 4 and have sole custody. I was in a relationship (non biological father) for 3 years. Now we are longer together and the "father: wants to seek legal joint custody. Can he legally obtain custody in Arizona?
  • Back in March 2017 I had a court order joint custody and parenting time with no child support. On 12/05 I received paperwork from the kids mom asking to modify the parenting time custody and support. I need to respond back to her back I don't know what exact form to use. Everything I see if for someone to start up the modification process.
  • I am currently expecting a baby. The father of my baby left me when I was 7 months, but has stated he wants to be in the baby's life. He is a habitual marijuana smoker, heavy drinker, and the people he surrounds himself with are not the kind of influences I want around my child. He moved in with his mom, who keeps a very dirty house and has been in and out of the hospital with MRSA for the last couple of years. I do not feel like he can provde a safe and stable environment for my daughter. He believes he will get joint custody. What actions do I need to take to ensure this does not happen?
  • My ex and i have a history of domestic violence. He is about to be released from prision in 3 weeks. what steps should i take to file for custody of our5yr old son?
  • My sons father has contacted me wanting to see my 13 yr old son after no contact in 10 years. He has a bad criminal history. The last custody order 6 yrs ago said he could have supervised visits with his paternal gramma every other weekend overnight & phone contact when it coincides with my sons schedule. He didn't ever show up for ANY visits or even call. I have agreed to phone contact between them for a few weeks then supervised visits. How long should that last? He wanted to call everyday but I don't want him calling so much. Is asking him to call every other day okay? What are my options?
  • I share joint custody of my son with my ex husband. We agreed to a parenting schedule at the time of our divorce 2 yrs ago. Now, I'm engaged and will need to modify the parenting schedule. Can my ex prevent me from moving 100 miles away to live with my new husband when our original order read "must remain 25 miles or less". I have a job lined up as well. How much notice do I need to give to move with our son to our new home?(I have physical custody)
  • I am the guardian of my 2 grandchildren (their mother is my oldest daughter) she had been in a domestic violence situation with the kids dad (he is in prison until July 2016) she lives with friends, no job, possible drugs. He does drugs and has a new girlfriend pregnant. I do not want either of them to obtain children EVER. What can I do to protect the kids and myself since Arizona tends to want to reunite children and parents. This is not a good idea with either of the biological parents. I love them to much to have them suffer. Guardian since 2010, they are age 9 and 6. suggestions?

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  • He told me that I could actually get all the money I needed by using my home as collateral. . .
  • I just helped my mother, age 89, deal with her Medicare HMO. . .
  • He told me that I could actually get all the money I needed by using my home as collateral. . .

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