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Archive for June, 2012

Criminal Case Procedures

Posted on: June 19th, 2012 by Scott Law

When someone is charged with a criminal offense, the court process can be overwhelming and confusing.  The following explains the path that a criminal case may take depending on the decisions made by the defendant:

Initial Appearance

In criminal case procedures the initial appearance is an individual’s first appearance in court.   When arrested and in-custody, this must occur within 24 hours of the arrest.  If not in-custody, a summons is mailed to the person’s home with a court date and time.  At the hearing, the individual is informed of the charges they are facing.  The release conditions are set by the Judge and a future court date is set.

Preliminary Hearing

Once a direct complaint is filed by the State formally charging a person with a crime, a preliminary hearing is set.  At this hearing, a person may be presented with a plea offer to settle their case or may choose to move forward with the hearing.  At the hearing, the State would present witnesses and evidence to try to establish probable cause that a crime was committed and by the individual accused.  If probable cause is found, an arraignment will be completed by the Court and an initial pre-trial conference will be scheduled.

Grand Jury

The State may also choose to proceed by grand jury indictment in the criminal case procedures.  Grand jury proceedings are held in secret.  A prosecutor presents evidence to the grand jury.  Then the grand jury makes a determination on whether there is probable cause that a crime was committed, by the person accused of the crime.  If an indictment is issued, an arraignment is scheduled for a future date.

Arraignment

The arraignment is a brief hearing before the Court where an individual facing criminal charges enters a plea of guilty or not guilty.  A plea of not guilty will result in the scheduling of an initial pre-trial conference.

Pre-trial Conference

Pre-trial conferences are brief hearings in the Superior Court.  They are typically before a Commissioner, where the Court determines if the State and defense have complied with the Rules of Procedure.  Also, whether there are discovery issues or whether a plea offer exists. Finally, in the criminal case procedures if found necessary a trial date or other hearings are set.

Settlement Conference

The Court typically orders that the parties participate in a settlement conference before the expiration of any plea offer.  The settlement conference Judge will advise the individual charged in the case with regard to their plea offer.  The settlement conference Judge will also advise the individual charged in the case the sentencing possibilities at trial.  As the criminal case procedures move forward the defendant is typically permitted to ask questions of both the Judge and the prosecutor so that they can be fully informed prior to deciding to accept or reject a plea offer.

Trial Management Conference

The trial management conference is typically the last hearing before the trial occurs.  Any trial issues are discussed at that time and the Court ensures that both sides are prepared to move forward on the scheduled trial date.

Trial

If an individual chooses to take their case to trial, a Jury of either eight or twelve jurors will determine the outcome of the case.  The State must prove to the jury, beyond a reasonable doubt, that the crime charged in the case was committed by the accused.  The jury must all agree on the verdict in order to find someone guilty of a crime.  In certain rare circumstances, the State and the defense may agree to a bench trial where there is no jury and the Judge determines guilt or innocence.  If a person is found not guilty of the charges, the case is over and they cannot be retried on the same charges.  If the person is found guilty, they will appear before the Court for final sentencing.

Sentencing

Sentencing is typically set thirty days out from the finding of guilt.  Both the State and the defense can provide evidence to the Court so that the Judge can better determine what sentence is appropriate.  The Judge is bound by the law and can only sentence an individual under the statutory sentencing range set for the particular crime.

What Parenting Time Schedule is Appropriate for My Child?

Posted on: June 19th, 2012 by Scott Law

Determining what parenting time schedule is appropriate for a child can often be challenging.  The Court looks to Arizona law (A.R.S. 25-403) in determining what type of parenting time schedule is in the best interests of the minor child.  Some of the factors the Court considers are:

  1. The wishes of the parents;
  2. The child’s wishes;
  3. The interaction of the child with each parent, any other siblings and any other person who may affect the child’s best interests;
  4. The child’s adjustment to home, school and community;
  5. The mental and physical health of each person involved in the case;
  6. Which parent is more likely to allow frequent and meaningful contact with the other parent;
  7. Whether one or both parents has been the primary caregiver of the child in the past;
  8. Whether either parent has attempted to use duress or coercion to force the other parent into reaching an agreement regarding custody and/or parenting time;
  9. Whether either parent was convicted of false reporting of child abuse or neglect against the other parent; and
  10. Whether there has been domestic violence or child abuse.

The Court will also consider substance abuse issues, criminal convictions and any other conduct of the parents that is contrary to the child’s best interests.

There are a numerous options when it comes to scheduling parenting time.  The Court will look towards the feasibility of a schedule prior to adopting it and consider any strain that a schedule will place on the child.  The distance between the parent’s households can be a factor as well as the parents’ work schedules.  In considering what parenting time schedule is best for a child, the Superior Court of Maricopa County has adopted Parenting Time Guidelines to assist the parents and the Court in making a final determination on what parenting time schedule is appropriate for the child.  However, each family is different and the schedules set forth in the Guideline may not fit each circumstance.  The Maricopa County Parenting Time Guidelines can be accessed through the following link:

http://www.superiorcourt.maricopa.gov/sscDocs/pdf/drcvg11h.pdf

The Effect of Divorce on Children

Posted on: June 19th, 2012 by Scott Law

Divorce is obviously difficult for the divorcing parties, but the children of divorce often suffer in their own way.  Young children thrive in stable, predictable environments.  During and after a divorce, their environment is often far from stable and predictable.  One household is divided into two, new surroundings and new relationships are often introduced, and the children are no longer with both parents on a daily basis.  The children may feel frightened, confused, stressed and may experience separation anxiety.  It is important for the parents to make their children feel secure both during and after the divorce proceedings.

It may help for parents to try to adhere to daily routines for the children.  Normal morning and bedtime routines can help a child feel safe and secure in both households.  Continuing with their regular extracurricular activities as much as possible can also provide stability.  When one or both parents move to a new neighborhood, parents should encourage the children to make friends in the neighborhood so that they feel more at home.  Also, having a specific toy, blanket, pillow or other personal item that regularly travels between the parents homes may also provide a source of comfort.

While it is important to answer a child’s question honestly, it is also imperative to speak about the other parent in a positive way and avoid discussing court proceedings.  One should never argue with the other parent in front of the children and should make attempts to encourage the children to have a strong relationship with both parents.  Avoid using the children as messengers between the parents.   Never make the children feel guilty about enjoying the time they spend with the other parent.

Each family is different and every child has unique needs.  It is important to discover what works for your family and your children during and after divorce.  Always listen to the children’s concerns, let them express their feelings and, if necessary, seek the assistance of a counselor to assist them both during and after the divorce.

Communication with a Former Spouse

Posted on: June 19th, 2012 by Scott Law

Discussing issues during a divorce with a former spouse may be uncomfortable, but communication is key.  Open communication regarding issues with the children, scheduling changes, travel plans, etc. is important for effective co-parenting.  Here are some tips for communicating with a former spouse:

  1. Always abide by the orders of the court with regard to communication methods.
  2. Schedule a time to talk with your former spouse and focus on one issue at a time to effectively tackle the task at hand.
  3. During the divorce treat your former spouse in a respectful manner.  Avoid name-calling, cursing, blaming, criticizing and bringing up the past.
  4. Actively listen to what your former spouse is saying and avoid jumping in before they have had a chance to complete their point.
  5. Avoid calling the children “my child”, “my daughter”, etc. and remember to refer to the children as “our children”, “our daughter”, etc.

Some individuals have more difficulty than others communicating effectively.  It is always a good idea to seek out a counselor, mediator or parenting coordinator if communication with a former spouse is overly difficult.