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Last Post 29 Apr 2018 01:09 PM by  Patricia
R-18-0023 Petition to Amend Rule 95, Rules of Family Law Procedure
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Patricia
New Member
Posts:7 New Member

--
24 Jan 2018 04:30 PM
    Petitioner:
    Patricia Cummins
    14715 S. Camino Tierra Del Rio
    Sahuarita, AZ 85629
    520-730-5650

    Would eliminate or amend Family Law Rule 95 to prevent court appointment of a special master over the parties' objection in family law matters.

    Petition to Abrogate Arizona Rules of Family Law Rule 95 A. which would remove conflicting Rules, conform and be in alignment with Rule 72 and Rule 74 of the Rules of Family Law Procedure.

    Would (1) preclude the trial court from appointing a family law master on its own motion without the agreement of the parties ; (2) clarify that the court may not appoint a family law master to serve as a parenting coordinator; and (3) clarify that the court must not delegate to a family law master the court's judicial authority to make decisions nor must the court seek recommendations concerning legal decision making or parenting time from a special master (4) the court must not appoint a Parenting Coordinator when the parties do not agree to one.
    If the court acts on its own to appoint a family law master—even in situations where the parties do not wish to have one. By rule, family law masters must be attorneys or other professionals with specific education, experience, and special expertise. The costs to the parties for a family law master are high and impose a significant economic burden upon the parties at a time when parties face concurrent financial stress related to the dissolution of marriage and division of assets.
    Parties that cannot afford or do not wish to compensate a family law master (3rd party) or Parenting Coordinator, should be able to rely upon the court to address issues regarding their dissolution or post-decree matters without incurring additional expense.

    Request for Permission to File the Petition Outside the Rule 28 Timeline

    Filed: January 28, 2018
    Request Granted: 2/13/2018

    Comments must be submitted on or before May 21, 2018.

    ORDERED: Petition to Amend Rule 95, Rules of Family Law Procedure = DENIED.
    Attachments
    Ed
    New Member
    Posts:3 New Member

    --
    26 Apr 2018 01:20 PM
    Ed Pizarro Sr.
    AFCC Member
    42424 N. Gavilan Peak Pkwy
    Anthem, AZ 85086
    MasonV620@live.com
    646.685.9137 Tel

    Rule 95 opens the door for abuse by court appointees who have chosen profit over parenting. An unnecessary rule, 95 seeks to supercede the parameters of Rule(s) 72 and 74 which limit appointees. A recommendation is permitted by the Court yet final approval should remain with the litigants specifically pro per.

    A Special Master (T.I.) was shoved down my throat before I understood her scope, and 3 years later, she's therapeutically reunited my now depleted finances into her bank account yet not one session between my 10 year old and myself have occurred. Requests to the Judge to dismiss these crook has been dismissed because of my pro per status. Many other families are suffering through the same nightmare merry-go-round. Omitting Rule 95 from ARFLP would ease the burden placed on parents and children.

    Regards,
    EP Sr.
    Patricia
    New Member
    Posts:7 New Member

    --
    29 Apr 2018 01:09 PM
    P. Cummins
    14715 S. Camino Tierra Del Rio
    Sahuarita, AZ 85629
    520.730.5650
    P. Cummins
    14715 S. Camino Tierra Del Rio
    Sahuarita, AZ 85629
    520.730.5650

    Upon further inspection of the latest Rule submitted on the forum by the task force, R-17-0054, there is a necessity to further incorporate Rule 63 in being abrogated or redone to be consistent with proper use of third party fee based appointments so as to not infringe upon statutory guidelines of most importantly : A.R.S. § 1-601 stating in part that the “liberty of parents to direct the upbringing, education, health care and mental health of their children is a fundamental right” and that strict scrutiny applies when a parent’s rights are infringed upon by the government.

    Please regard the following conflict with Rule 63 as it is the same as Rule 95, and fee based third party appointments over objection.
    SIMILAR CONFLICTS WITH RULE 63- See A.R.S. § 1-601 stating in part that the “liberty of parents to direct the upbringing, education, health care and mental health of their children is a fundamental right” and that strict scrutiny applies when a parent’s rights are infringed upon by the government.
    Individuals faced with infringement on their fundamental constitutional right to parent should face no more financial burden.
    Judge Swann has provided in similar comments: “First, the standard -- whether a parent “can afford” – is too vague and subjective to permit consistent application or meaningful review. Second, the information that the court usually has available to it, while sufficient to assess a parent’s basic financial condition, is usually insufficiently detailed to determine what the parent can truly “afford..” Third, we question whether the court has (or even should have) the power to determine what parents will spend based on its subjective impression of what they can afford. It would be unthinkable to order a pro per litigant to hire a certain lawyer the court thinks she can afford. On what basis, then, can the court order a litigant to hire a certain lawyer, psychologist or other parenting coordinator ?”
    A parent who is functional, obtains “outstanding” ratings at work, is a parent who has provided for their children, is involved in school and sports with the child, has a happy child, shares legal joint custody, and pursuant to State Law has the liberty of parents to direct the upbringing, education, health care, and mental health of their children, parents request they restrict the infringement of this right by allowing a parent to use this Rule 63 as another form of harassment and coercion.
    This Rule is one which can be used to harass, and increase costs, how does the judge decide if any of this is necessary, to further harass a pro se litigant, or what is the parameter of what in “controversy” their own curiosity? which the same topics of Rule 95 (a), are again are not included in Rule 63, why would this be ordered only upon request of a party? This is invasive, this is harassing, this is for annoyance and embarrassment, what are the parameters for this rule to be used? who pays for this, who selects and pays the evaluator, who allows violation of HIPPA, this rule plays into Domestic Violence.
    1. Conner (2011) concludes in a lengthy review of 82 D. G. Saunders
    the literature: ‘‘Communication is made difficult, if not impossible, when one
    parent harasses, abuses, and intimidates the other parent. Not only are
    batterers poor decision makers, they also tend to use the power of joint
    parenting to exert control over the other parent’’ (p. 260). Research supports
    Conner’s conclusion that many abusers will use a joint legal custody arrangement
    to continue harassment and manipulation through legal channels
    (Bancroft & Silverman, 2002; Hayes, 2012; Jaffe, Lemon, & Poisson, 2003;
    Zorza, 2010).

    2. ** The National Council of Juvenile and Family Court
    Judges’ guidebook cautions:

    In contested custody cases, children may indeed express fear of, be
    concerned about, have distaste for, or be angry at one of their parents.
    Unfortunately, an all too common practice in such cases is for evaluators
    to diagnose children who exhibit a very strong bond and alignment with
    one parent and, simultaneously, a strong rejection of the other parent, as
    suffering from ‘‘parental alienation syndrome’’ or ‘‘PAS.’’ Under relevant
    evidentiary standards, the court should not accept this testimony. The
    theory positing the existence of ‘‘PAS’’ has been discredited by the scientific
    community. If the history of violence is ignored as the context for
    the abused parent’s behavior in a custody evaluation, she or he may
    appear antagonistic, unhelpful, or mentally unstable. Evaluators may then
    wrongly determine that the parent is not fostering a positive relationship
    with the abusive parent and inappropriately suggest giving the abusive
    parent custody or unsupervised visitation in spite of the history of violence;
    this is especially true if the evaluator minimizes the impact on children of
    violence against a parent or pathologizes the abused parent’s responses to
    the violence. (Dalton et al., 2006, pp. 24–25)
    Even without explicit reference to PAS or alienation, evaluators may use
    an implicit alienation framework when assessing motives and behavior
    (Pranzo, 2013).





    A. SIMILAR CONFLICTS WITH RULE 63 and Rule 95 (A):
    1. FAMILY LAW RULE 95 (A) states:
    A. Private Mental Health Services. In addition to conciliation services, the court may order parties to engage in private mental health services, including, but not limited to, counseling, custody legal decision-making or parenting time evaluations, Parenting Coordinator services, therapeutic supervision of parenting time, and other therapeutic interventions.

    2. FAMILY LAW RULE 63 STATES:
    Rule 63. Physical, Mental or Behavioral Health, and Vocational Evaluations.
    (a) Examination on Order.
    Generally. The court where the action is pending may order a party whose physical or mental condition or ability to work is in controversy to submit to a physical examination, mental or behavioral health examination, or a vocational evaluation by a physician, psychologist, or designated expert. The court has the
    It is the court that is required to determine legal decision-making and parenting time. A.R.S. 25-403(A). In contested cases, the court is further required to make its own specific findings on the record regarding the relevant factors and the reasons for which the court’s decision is in the best interest of the child. To delegate these determinations to a family law master abdicates the court’s judicial responsibility to make these decisions.
    The court itself has the obligation to make specific statutory findings under A.R.S. §25-403 as to the best interests of the child in making these decisions. In Nold v. Nold, 232 Ariz. 270, 304 P.3d 1093, (App. 2013), the family court relied upon a custody evaluator’s report to determine legal decision making and parenting time and made no findings of its own regarding the relevant statutory factors required by A.R.S. §25-403. The Court of Appeals reversed, holding that:
    the family court delegated its obligation to independently weigh the evidence in determining the children's best interests to the evaluator. See DePasquale v. Superior Court (Thrasher), 181 Ariz. 333, 336, 890 P.2d 628, 631 (App.1995). The family court “can neither delegate a judicial decision to an expert witness nor abdicate its responsibility to exercise independent judgment. The best interests of the child ... are for the [family] court alone to decide.” Id. By using the report as the baseline for custody, the family court delegated its judicial decision to the evaluator, abdicated its responsibility to decide the best interests of the children, and therefore abused its discretion.
    Nold at 273, 1096.


    3. Rule 95 A, and Rule 63 sharing similar conflicts:
    The Court ordering a fee based third party and indicating who the provider will be, over objection, by coercion of threatening to give a child to the other parent unless you agree to stipulate, and in regard to who pays for it, who selects the person to do it, and on what strict basis not in conflict with the law, if the court must determine independently and weigh the evidence and cannot abdicate its responsibility to independent judgement, why have these two rules at all?
    a. There are no guidelines or clear reasons for them. What is meant by being “in controversy”?
    b. The people to this day do not have an “opt out” button, NOR cap MAXIMUM DOLLAR amount spent using family court or attorneys- regarding the use of family court, but one may be necessary, as in some cases, families can be kept in for the life of a child with the rules that attempt to infringe on parents by trying to make the court be a “Super Parent” to the parents, and the “work” of aligned “professionals/attorneys” who keep the churning conflict rolling for their financial interests.

    4. Example:
    Private Mental Health Services. In addition to conciliation services, the court may order parties to engage in private mental health services, including, but not limited to, counseling, custody legal decision-making or parenting time evaluations, Parenting Coordinator services, therapeutic supervision of parenting time, and other therapeutic interventions.

    1. Judge Rash in Pima Superior Court ordered as one party requested a “limited assessment” of the family to be done by opposing party’s specific unilaterally selected provider, no disclosure as to what is a “Limited Assessment”, no RULE was specified as to which rule 63 or 95 was being used in the order or why, no information on who she was or what her background or education is, a Dr. Holly Joubert PsyD. The parties were ordered to share the cost 50-50, even though 70-30 is the child support division and one parent has been bankrupted by Family Court which furthers the financial burden to impoverish the parties (more so the bankrupt one), and is not in the best interest of the child.

    c. Dr. Joubert has obtained a DUI, and is pending her criminal charges, filed a false report to the court to be taken as true having only obtained information from one party, she only met with one party for thirty minutes, has not provided her fee agreement, or her program description, due to most likely her personal problems, it was requested she be removed which was DENIED.

    d. This is burdensome and oppressive and forces further work of the parties to file complaints to her licensing board for incompetence and unprofessional practice pursuant to her statutory responsibilities have been breached and per the AFCC “ If decisions and recommendations by the psychologists are not based on adequate data, the psychologist is acting both incompetently and unethically” another poor decision by the Judge to Order her “services” over objection.

    2. Under Rule 706, the appointment and cost should have been disclosed and the expense forcing undue hardship to be considered and the court should have the burden to absorb the cost.

    3. Dr. Joubert stated and fully believed she was going to determine CUSTODY, which is not her responsibility, it is the court’s responsibility:

    DR. JOUBERT: -- it's not him. I'm neutral as far as you guys are concerned, but my job is to try and figure out what I think would be in his best interest.
    PATRICIA CUMMINS: Like as far as what?
    DR. JOUBERT: As far as any of the determinations.
    PATRICIA CUMMINS: Like as far as more counseling or --
    DR. JOUBERT: Custody.

    a. Joubert’s statement is in conflict with statute: A.R.S. § 1-601 stating in part that the “liberty of parents to direct the upbringing, education, health care and mental health of their children is a fundamental right” and that strict scrutiny applies when a parent’s rights are infringed upon by the government.
    1. Neither party has any psychological diagnosis, both are functional parents sharing custody 50-50.
    b. The Judge not removing her for having pending criminal charges further erodes confidence in the judiciary, and forcing the parties to pay her for her faulty work contributes to impoverishing the family further:
    The court itself has the obligation to make specific statutory findings under A.R.S. §25-403 as to the best interests of the child in making these decisions. In Nold v. Nold, 232 Ariz. 270, 304 P.3d 1093, (App. 2013), the family court relied upon a custody evaluator’s report to determine legal decision making and parenting time and made no findings of its own regarding the relevant statutory factors required by A.R.S. §25-403. The Court of Appeals reversed, holding that:
    the family court delegated its obligation to independently weigh the evidence in determining the children's best interests to the evaluator. See DePasquale v. Superior Court (Thrasher), 181 Ariz. 333, 336, 890 P.2d 628, 631 (App.1995). The family court “can neither delegate a judicial decision to an expert witness nor abdicate its responsibility to exercise independent judgment. The best interests of the child ... are for the [family] court alone to decide.” Id. By using the report as the baseline for custody, the family court delegated its judicial decision to the evaluator, abdicated its responsibility to decide the best interests of the children, and therefore abused its discretion.
    Nold at 273, 1096.


    Respectfully submitted for full consideration,

    Patricia Cummins
    Mother

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