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

  • My son who is 12yrs old has been living with me for the last 6 months. His mother has not worked in about 4yrs and moved several times and at this time has no place to live or car. She gets 1226. a month from me. She has medical issues and feel she is not stable. She has been admitted to a behavioral hospital a couple times and is currently on probation for her daughters truancy. I want to know whats the best way to get custody of my son. Im afraid if she finds out she will take him from me
  • If the father is out of work, behind on child support and does not have a vehicle, does this effect his rights to decisions and time with the child, of 4 years of age?
  • My ex husband filed to modify child support to lower his payment. Before he filed I told him that I wanted to file to have the children during the whole week and modify our current parenting plan. So now he filed the child support modification should I not respond and have a hearing? Or should I file my own paper work to modify the parenting plan?
  • I have a 2 year old son and his father has not contacted me to see him in 5 months. Currently he is incarcerated and has not paid any money for the purge amount for the passed 2 months. Am I able to file for child abandonment after 6 months if the father continues this behavior? If so, how do I go about filing for this?
  • would the court allow the noncostodial parent to give up all parenting time
  • I am needing info about relocating my neice and her two children from Phoenix to Oklahoma. She is divorced,receiving 400.00 child support. She is unemployed and no ther income.This results from having a child that is bipolar, ADHD, and mood disorders. She desperately needs help from her family in Oklahoma. Her children's father will not let her move. We can help her with her children but e cannot afford an attorney and doesn't know a lot of people in Phoenix. Any advice or contacts that I could speak with. Thank you so much
  • my girlfriend was arrested for domestic violence. The cops left my son with me. The next day i had to go to work, so i left him with my parents. She took the cops over there and got him since she knew i was at work. Now she will not let me see him at all. She wont return my txts, to let me know how hes doing. I keep texting her that i want to know and see my child but she doesnt respond. What court papers do i need to file? I want to get him back right away. I want custody of him. I can provide a better home for him because shes at her parents. which alot of people live there.
  • I'm just curious in case things go wrong. But I'm hispanic & a legal US citizen, my boyfriend is Native American & we have a a child together. From what I've heard from a friend is that by law since he's Native, that he can have full custody of our child. I want to know if this is true, because he's on probation & has a bad record and where he lives with his mom is not so safe for our baby since she smokes. So I'm wondering with that in the way, if I would have more of a right to keep the baby with me?
  • My cousin has a 14 month old boy and she has joint physical and legal custody with her ex husband. She has him the first half of the week and he is supposed to have him the last half of the week as per the court. The ex-husband has not seen his child in over 3 months, because he doesn't want to pick up the kid anymore and has told my cousin every week that he is busy with something else and can not take him. He mentioned to her recently that he just wants to give up the child because he doesn't want to be a father anymore. Is it even possible for him to give up parental rights completely?
  • Can a child of age 14 decide which parent he wants to stay with?

STORIES

  • If you get a divorce, make sure your date of birth is on the Decree if your name is changing!. . .
  • He told me that I could actually get all the money I needed by using my home as collateral. . .
  • He told me that I could actually get all the money I needed by using my home as collateral. . .

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