Do Grandparents Have Rights When it Comes to their Grandchildren?

We have all had family fights. Disagreed with our parents or rebelled when we were teens and thought we knew everything, but what happens when that fight leaves the family in pieces?

Family Picnic

When adults have disagreements, they are often caught up in the heat of the moment. They say things they don’t mean and they do things they would not otherwise have done. Sometimes this means parents deny grandparents’ access to their grandchildren. Unfortunately, parents are not often thinking of the effects that this denial may have on their children. Grandparents today are often very involved in the upbringing of their grandchildren. This begs the question; do grandparents have the right to fight for time with their grandchildren?

In Arizona, there are circumstances in which grandparents have standing to fight for legal decision-making rights and placement of, or visitation with their grandchildren. However, it is difficult to meet the standards of the court.  According to the U.S. Supreme court, parents have a fundamental right to raise their children as they see fit. What this translates to is that there are a number of legal hurdles that grandparents must overcome before they are granted any rights with respect to their grandchildren.

According to A.R.S. § 25-409(A), to gain legal decision-making rights and placement for a grandchild over the objection of the parents, the grandparents would have to meet a number of prerequisites. First, the grandparents have to prove that they have been treated as a parent by the child and have formed a meaningful relationship with the child for a substantial period of time.

After jumping that hurdle, the grandparents must show, that it would be significantly detrimental to have the child remain in the parents’ home; and that is just the beginning. Those requirements are just a part of the bigger picture a grandparent must paint in order to gain legal decision-making rights and placement of their grandchildren. The State has adopted these measures to afford parents protection of their fundamental rights to parent.

Grandparents

States must balance the delicate interests of parents and grandparents at stake and try not to infringe on the parent-child relationship, if it is not necessary. This is because courts are under the general assumption that a parent is fit; and a fit parent is able to make all necessary decisions for their children without intervention. Any case made to the contrary, has a heavy burden to bear in proving otherwise. Having an attorney experienced in these matters can be crucial for a grandparent fighting for legal decision-making rights and placement of grandchildren.

Alternatively, grandparents can file for visitation under A.R.S. § 25-409(C) (rather than trying to remove the child from the parents’ care). The hurdles grandparents must overcome for visitation are slightly lowered compared to that of legal decision-making/placement rights; however, there is still a substantial amount of proof needed to prove it is in the child’s best interest to have visitation with the grandparents.

Let’s look at an example. If a Tempe grandmother wanted to petition for visitation rights with her grandson, she would have to file a petition with the Maricopa County Superior Court.  She would first have to establish that either one of the parents was deceased, of that the child was born out-of-wedlock and the parents are not married, or that the parents are divorced.  After meeting this initial requirement, she then has to prove her relationship with the child and why it is in the child’s best interest to have her continued presence in his life. She would have to offer evidence of her historical relationship with him and establish his reliance on her presence, explain her motivation for the request for visitation, and how the requested visitation may impact the child’s customary activities, among other best interests’ factors.

If she can show that she has been a substantial part of the child’s life and the child would suffer if she were no longer able to see them, the court may decide that it would be in the child’s best interest to have continued visitation. Though this may not seem like a substantial burden, proving the best interest of the child can be a tricky topic to maneuver around, especially since courts are hesitant to step on a parents’ right to raise their child as they see fit – even if that means alienating grandparents.  Again, having an attorney experienced in these matters can be crucial for a grandparent fighting for visitation with their grandchildren.

Grandparent with Mother and ChildrenSo, while Arizona does provide some options for grandparents seeking time with their grandchildren who have been cut off from them, it does not and cannot afford the rights some grandparents wish to have. Sometimes the best option is to seek mediation or family counseling and try to reconcile the situation, though sadly, in such instances, mediation may not be an agreed upon option, leaving grandparents with the difficult decision as to whether to fight for their legal rights.

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Munchausen by Proxy?

It’s a tragic story. Garnett Spears, a 5-year-old boy, was given deadly amounts of sodium through his feeding bag, allegedly by his mother.

After beginning treatment, hospital tests revealed unusually high amounts of sodium in the boy’s body, which accounted for his neurological symptoms. With this bizarre finding, the doctors at the hospital immediately notified CPS, who began an investigation into the matter.

Children at hospital

In Arizona, according to A.R.S. § 13-3620, it is mandatory for treating physicians to report any reasonable belief that a minor is a victim of physical injury or child abuse. For instance, if a Mesa mother brought her son to Cardon Children’s Medical Center with burn marks that appeared to be caused by a cigarette, they would likely contact CPS to investigate the incident.

New York has a similar law, NY SOC SERV § 413, which states that physicians are required to report if a child has been maltreated or abused and has come to them in their official capacity. The doctors in this matter saw a red flag in the unusual test results and knew they must report the incident immediately.

While the boy was in the hospital, his mother called a neighbor to dispose of his feeding bag. The neighbor, suspicious of the odd request, decided to retrieve the bag but instead of disposing of it, turned it over to investigators looking into Garnett’s death.

Mother and ChildWhen the authorities received the feeding bag from the neighbor it was tested to determine if he was being fed the high amounts of sodium through the feeding bag inserted into his abdomen. Tests revealed the bag indeed contained high levels of sodium that accounted for the dangerous levels of the chemical that killed him. Unfortunately, it was too already late for Garnett.

Through investigation, authorities found that the mother had been documenting the son’s multiple illnesses through social media. They believe Spears may suffer from Munchausen by proxy and caused her son’s illness, and ultimately death, for attention. It is likely she did not intend to cause the untimely death of her son but that was the regrettable result.

Family and friends gathered in support of Spears through her posts regarding her son’s illness and his stay at the hospital was no different. Spears denies giving her son the excess amount of sodium, but authorities are still investigating the matter and will likely charge her with the crime.

Posted in Brad TenBrook, Gregg R. Woodnick, Leslie A. Satterlee, Muchausen By Proxy, Parenting Plan | Tagged , , , | Leave a comment

Can Refusing Your Kid McDonald’s Make You Unfit to Parent?

Attorney David Schorr was accused of being an unfit parent by a psychologist in New York because he refused his 4-year-old child McDonald’s. The New York father currently has visitation time with his son every Tuesday. Mr. Schorr asked his son what he wanted for dinner and the son replied with the typical child response… McDonald’s!

Mr. Schorr was not enthused about the thought of having fast food for dinner and offered several other options. The son refused all other options and proceeded to throw a fit to get his way. The exasperated father finally “put his foot down” and said if his son did not choose something other than McDonald’s, they would have nothing. To his dismay, the son chose nothing. Mr. Schorr returned his son to his mother without getting him their Tuesday night dinner.

French Fries

This all happened in the midst of a bitter custody battle. Sometimes in Arizona, when custody battles become a convoluted mess of “he said-she said,” courts appoint a forensic psychologist to speak with the family and make recommendations about the best interest of the children involved.  If a Scottsdale father is alleged to be unfit for refusing to take his spoiled kid to Sapporo, there are numerous psychologists and family interventionists in Maricopa County who may be asked to step in. That was likely the case in this custody battle. Though the courts are not required to follow the recommendations of the psychologist, they often put a lot of weight on the recommendations. Mr. Schorr was outraged by the accusations and recommendations in the psychologists report and brought a defamation suit against the psychologist.

To read more about the “unfit” McDonald’s denier, click here.

Posted in Brad TenBrook, Divorce, Gregg R. Woodnick, Leslie A. Satterlee, Parenting Plan | Tagged , , , , | Leave a comment

Jersey Girl Sues Parents: What to Make of the Rachel Canning Case

The nation has been swept into a furor in the past few days over a New Jersey girl suing her parents.

Rachel Canning, 18, filed a complaint against her parents, alleging that they abused and mistreated her before kicking her out of the house, stopping payment of her private high school tuition, and “redirecting” her college fund.

Sean and Elizabeth Canning, Rachel’s parents, counter that she left of her own volition because she did not like house rules (e.g. curfew) and refused to dump a bad-influence boyfriend after being given an ultimatum.  Moreover, Sean and Elizabeth indicate that Rachel was disrespectful to them and was repeatedly disciplined at home and school for bullying her younger sister.

School Grounds

More troublesome allegations include that Elizabeth psychologically abused Rachel, calling her disparaging names and destroying her self-image to the extent that Rachel developed an eating disorder.  The eating disorder, Rachel claims, made her too weak to continue playing basketball (a sport for which she would likely have earned a college scholarship).

Rachel also contends that her father has an inappropriately affectionate relationship with her, having provided alcohol on numerous occasions and treating Rachel as “more than” a daughter.  A cursory investigation by New Jersey officials did not reveal abuse, but the findings were far from substantial.  Sean and Elizabeth countered with a disturbing voicemail in which Rachel berated her mother.

Rachel has been living with a friend whose father, an attorney, supports the lawsuit and has paid Rachel’s legal fees to this point.  The parents of Rachel’s boyfriend have also made statements defending their son and simultaneously indicating that Rachel’s alleged misbehavior began before her son was involved and that Rachel’s allegations of abuse are true.

The courts have also been dragged into the dispute: yesterday, a New Jersey judge denied Rachel’s petition for her parents to pay her outstanding school tuition and living expenses until the case is resolved.

Meanwhile, commentators both amateur and professional have taken to television, radio, and social media around the country to express their opinions of the case, Rachel, her family, and the state of parenting in the 21st century.

Amid the chaos, however, are some real legal issues (and misunderstandings) to consider:

1.      What is Rachel’s case?

Part of Rachel’s suit against her parents rests on the assertion that she was abused and subsequently abandoned during the school year.  Although the Canning case is in New Jersey, Arizona law provides a similar basis for the idea that parents must support children while they remain in school:  “Except [in cases of sexual conduct with a minor or sexual assault], every person has the duty to provide all reasonable support for that person’s natural and adopted minor, unemancipated children … the court may order support to continue past the age of majority.  If a child reaches the age of majority while the child is attending high school or a certified high school equivalency program, support shall continue to be provided while the child is actually attending high school or the equivalency program but only until the child reaches nineteen years of age unless the court [orders that the obligation continue].” Ariz. Rev. Stat. § 25-501.

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Tremendous public confusion has resulted from Rachel’s attorney insisting that Rachel does not want to be emancipated from her parents, mostly because the common understanding of parental obligations is that the duty to provide support terminates automatically when a child turns 18.  As demonstrated in § 25-501, however, the obligation that every parent has to support children persists through high school (until age 19), or even longer if a court finds support necessary.

Rachel’s argument that her parents should pay her college tuition is more complicated because the law does not generally require parents to pay for post-secondary education.  Rachel’s attorney might argue that Rachel and her parents had a binding agreement that she would gain access to her college fund once her application to a university was accepted.  It is also possible that Rachel’s case will call on college tuition orders in divorces as precedent that parents are obligated to pay college tuition in some circumstances.

Notably, the U.S. Department of Education does not allow financial aid administrators at higher education institutions to grant need-based aid unless the parents are unable to pay.  A parent’s refusal to provide financial information for the student’s aid application or refusal to pay tuition does not create need sufficient to warrant financial aid.  Even if the parents do not claim the student as a dependent or the student is financially self-sufficient, the Department will not issue aid if the parent is capable of paying.  Accordingly, Rachel must win her argument or mend her relationship with her parents in order to attend one of the numerous universities that have accepted her applications without substantial loan debt, even if she becomes independent.

 2.      Why so much talk about precedent?

In the most recent hearing, the judge chided Rachel’s attorney for asking him to set a precedent that would give parents “constant fear” that their child could sue for cell phones, televisions, or simply to avoid obeying household rules.  Notwithstanding the fact that his rhetorical questions grossly minimize the abuse allegations, the judge’s concern with precedent may have merit.

Graduation (Woodnick)

In all types of law, case-by-case decisions change the landscape.  Because courts tend to follow the reasoning used to make earlier decisions, novel cases like Rachel’s lawsuit can have lasting effects on how judges resolve future disputes.  One New Jersey family court judge’s decision is not likely to have a significant impact on common law development in New Jersey – and has negligible persuasive value for courts in any other state – because trial-level decisions do not bind other courts.

If the New Jersey judge ultimately grants Rachel’s petition for college tuition, that decision would have persuasive value in other New Jersey courts, but would have almost no effect in Arizona.  If a Brophy or Xavier student decides to sue a Scottsdale parent in the Superior Court, they will face the same uphill battle.

The only “precedent” with which the judge should be worried is that media coverage will spread misunderstanding and create uncertainty among parents, but far-reaching policy concerns of that stature create bad court decisions and should be left to the legislature.

3.      Where did this case go wrong?

Serious family disputes occur every day, to the surprise of absolutely no one. Intrafamily lawsuits, however, are far less common.  Family courts focus substantial resources on mediation, coordination, and counseling to help families resolve problems.  Only when these remedial measures fail do courts resort to trials and orders, because those orders can have a tremendous negative impact on a family’s future.  Judges greatly prefer to avoid forcing families to act if voluntary resolution is possible.

In the Canning case, speculation is rampant that attempts to mediate between the parties either never occurred or were sabotaged by everyone from Rachel’s friends, the attorney bankrolling her case, the school, the attorneys representing the parties, Rachel’s boyfriend, and the list continues.  Many commentators suggest that Rachel feels so strongly entitled to her college fund that she simply can’t understand the gravity of the situation, while others believe she is being manipulated.  It may be that Rachel is an abuse victim and is terrified of the prospect of moving back into her parents’ home.

The national uproar over the case illustrates one key observation: children do not regularly sue their parents and have a lot to lose if they do.  With all of the contemporaneous mud-slinging at the parents and (mostly) Rachel, observers seem ready to level blame and offer their 140-characters-or-less solutions to all of the world’s parenting problems.  One commenter even suggested that Rachel “find a corner” and “work off her entitlement;” a despicable and naïve response to a sad situation.

Instead of trying to fit the case into a narrative agenda, parents, teachers, lawyers, practitioners, and policymakers should see the Canning case as a sobering example of how quickly a family can be derailed and ask tough questions about how we define adulthood, family support, and abuse.

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Getting Back Baby Jack – Putative Father Registration and Consent to Adoption in Arizona

A nightmare scenario for one Utah father has made national news.  The most disconcerting part of his story is that it could happen again right here in Arizona.

In 2010, Jake Strickland learned that he was to become a father.  Strickland and the baby’s mother, Whitney Pettersson Rathjen, mutually agreed to share joint responsibility for the care of their son despite their inability to maintain their intimate relationship together.  As the pregnancy progressed, Strickland became more and more involved.  He invited Rathjen to numerous family gatherings, paid for medical expenses and groceries, attended doctor appointments, and even converted a room in his home into a nursery to prepare for the arrival and care of his child.

Sledding

During this time, Strickland and Rathjen briefly discussed the issue of whether Strickland should register as the baby’s putative father.  A putative father registry reserves potential paternity rights (including consent to adoption) for the unwed biological father of a child in the event that parentage is disputed after the baby is born.  The legal presumption is that the husband of a married woman is the biological father of her child unless the unwed biological father overcomes legal barriers to establishing paternity, one of which is putative father registration.

Rathjen insisted that Strickland not register and take the mother at her word that she would not attempt to terminate his parental rights.  She even went so far as to threaten Strickland, saying that she would never allow him to see the baby if he submitted his name to the putative father registry.  Strickland, although leery of Rathjen’s odd response, felt he had no choice and never registered.

The day before the baby was born, Strickland and Rathjen spent the evening hours together walking through downtown Salt Lake City and enjoying the Christmas lights on display.  On December 29, 2010, Rathjen gave birth and, unbeknownst to Strickland, declared that she did not know the identity of the father and immediately consented to an adoption.

For eight days, Rathjen ignored or curtly responded to Strickland’s attempts to communicate with her.  At one point, Rathjen affirmed that she was still scheduled to have the baby by Caesarean section on January 12 before finally divulging the truth on January 5.  Since then, Strickland has been embroiled in an extensive and complex legal dispute with Rathjen, her attorneys, the adoptive parents, LDS Family Services, and the State of Utah over his wrongfully terminated parental rights.

Strickland alleges that Rathjen worked together with social workers and the adoptive family to streamline the adoption process and guarantee that he could not assert his paternal right to consent to the adoption until it was too late.  Strickland has been battling for the restoration of his parental rights for three years and filed a civil suit for fraud, racketeering, and other claims on January 2, 2014.  Essentially, Strickland believes that Utah law creates an adoption system that a birth mother can use to defraud an unwed father out of his parental rights with little to no recourse.

It is not yet clear whether the courts will vindicate Strickland’s claims, and the story is certain to continue to evolve as the civil case progresses (the adoption challenge, however, has reached the appellate stage and has established a clear record of factual wrongdoing even if the law does not create an eventual remedy).  That said, the case of “Baby Jack” in Utah could have happened much the same way in Arizona or one of numerous other states with similar unwed paternity law.

19th Century Family

Arizona’s putative father registry statute allows an unwed father to register his claim of paternity and to receive notice of adoption proceedings.  The unwed father must affirm that he is willing and able to support the child and actively seeking paternity in a separate action.  The unwed father must register within thirty days of the child’s birth unless he proves by clear and convincing evidence that it was impossible at the time, but the father’s lack of knowledge of the pregnancy is specifically excluded as a reason for failure to file within the thirty-day period.  The statute, codified at A.R.S. § 8-106.01, declares that “the fact that the putative father had sexual intercourse with the mother is deemed to be notice to the putative father of the pregnancy.”  Furthermore, the adoption consent statute (A.R.S. § 8-106) requires the putative father to object to a proposed adoption by filing a paternity petition and serving it to the mother.

This means that a father’s right to consent to, or reject, a potential adoption of his child can be defeated if the mother simply refuses to tell him about the pregnancy or the date of the child’s birth.  The Baby Jack scenario could easily be repeated in Arizona – and may already have occurred – because the statute does not waive its strict requirements in the event of fraud.  In fact, in 1971, then-Attorney General Gary K. Nelson issued an opinion recommending that the putative father registry statute be amended to require notice to all fathers whose identity is known when an adoption proceeding is initiated.  Op.Atty.Gen. No. 73-5-L.  Unfortunately, it appears that the Legislature ignored Mr. Nelson’s advice and still requires strict compliance with the onerous requirements of § 8-106.01.

As a result, one need not be a legal mystery writer to imagine the potential for a pregnant woman to accept the help of the baby’s father until shortly before childbirth and then dodge service of the paternity petition (assuming the putative father even receives notice of the adoption or manages to register in time).  The mere possibility of this result, let alone its apparent likelihood, is preposterous in today’s sophisticated world of family law.  Unfortunately, as long as states rely on antiquated notions of legitimacy and parental rights initially formulated almost a century or more in the past, the ability of well-meaning fathers to protect themselves will be handicapped.

Accordingly, the best way for an unwed father to protect his parental rights is to register before the baby is born notwithstanding his trust in the mother.  Admittedly, this advice is not helpful to an unwed father who does not learn of the pregnancy in time, either through mistake or misconduct by the mother, but early registration remains the best way to protect paternity rights.  That said, existing putative father law in Arizona and other states is not particularly effective at protecting the rights of fathers who want to be involved in their child’s upbringing.

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The Importance of Family Counseling in Dissolution and Legal Decision Making Disputes

All too often, tragedies occur in the context of divorce and custody disputes.  In Arizona we no longer use the term “custody” and instead use the phrase “legal decision making,” but for the purpose of this article we will refer to it colloquially as custody.  Unfortunately, many of those tragedies are perpetrated by the parties involved, but there may be ways to prevent the unspeakable from occurring.

On Christmas Day, a Casa Grande woman murdered her daughter, poisoned her family, and stabbed her ex-husband several times before attempting to kill herself.  Recent questioning revealed that the woman, Connie Villa, feared losing custody of her children to her ex-husband.  Few details are yet known about the couple’s 2012 divorce, made official a few months ago, and subsequent custody battle.

Eye Rub

Homicide is not commonplace in a family law dispute, but the threat of domestic violence, kidnapping, and other potential hazards and wrongdoing is great enough that courts often order counseling.  Furthermore, courts may order that the parties to a family law proceeding undergo a psychological evaluation, rehabilitation for substance abuse issues, and other forms of treatment to help create the safest environment possible.

Attorneys also have a pivotal role in resolving disputes in a way that promotes the long-term health of their clients and their families. Unfortunately, the professionals assigned to help guide a family through a case are limited by the good-faith participation of the parties.  For example, a husband who struggles with moderate depression may lie about his symptoms, fail to disclose his diagnosis, or refuse recommended treatment because he fears potential consequences with the court, his employer, or the rest of his family.  Conversely, the wife of a clinically depressed husband may exaggerate his behavior or fabricate an allegation of abuse in an attempt to compel a more favorable judicial result.

Meanwhile, the evaluators and caretakers are unable to make accurate recommendations to the court and cannot prescribe proper treatment of what ails the parties.  Ultimately, the failure of the parties to participate openly and honestly in the process can result in tragedies that might have been preventable.

It cannot be known whether the Christmas Day killing of Aniarael Macias, an innocent 13-year-old girl, could have been prevented, or even whether Villa suffered from an undisclosed or insufficiently treated illness, but the case provides a sad reminder of the high stakes that a family legal dispute can raise.

Welcome Back

If you are involved in a contested divorce, a custody dispute, a dependency hearing, or simply feel as though your family’s affairs are too strained to manage, the most important thing that you can do is to engage with the resources available to you.  Family court cases are immensely stressful to the parties, and even one or two counseling sessions can tremendously improve your quality of life during a difficult time.

Moreover, good-faith participation in the process, including complying with recommended evaluations and treatment, is critical.  Vexatious tactics and vengeance-oriented litigation might strain your family to the breaking point and trigger new disputes, violence, or worse.

The unseen forces that can damage a family – or an individual – beyond repair are particularly worrisome around the holidays, during school breaks and vacations, and just before or after moving to a new home or job.  Your attorney should be aware of these concerns and remind you that being overzealous in trying to protect yourself or your children might have the opposite effect of what you intended.

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When Arizona Foster Parents are Ready to Adopt – A Rare Opportunity for a Free Lawyer

I received a call the other day from a potential client and her partner.  They had been fostering a child through a CPS placement for almost 19 months.  The baby was just three weeks old when he was placed in their care.  The first few weeks of his life were spent in a hospital.  The birth mother had limited prenatal care and the baby was born as a S.E.N. (Substance Exposed Newborn).

Although foster training taught the moms that their obligation was to nurture the child until reunification with the parents occurred, as with many loving foster families, they fell in love with the baby after welcoming him into their Gilbert home.  Notwithstanding the drug exposure, he was thriving in their care.

Sports Kid

The foster moms went to every Dependency Hearing and even attended the Foster Care Review Boards.  The biological mother appeared at the court hearings and proclaimed a desire to be reunited.  Her numerous missed TASC drug tests told a different story.  Her erratic behavior and failure to attend a court-ordered psychological evaluation coupled with an arrest for possession of drug paraphernalia certainly did not help her court appointed attorney present a defense or argument to expedite the reunification.

Meanwhile, the CPS case workers constantly changed.  There was an investigative worker, an involved supervisor, and three others since the baby had been in the State’s care.  Fortunately, no one ever mentioned removing the child from the foster parents.  There was never a biological father identified (referred to as a “John Doe”) and mother’s family was uninterested and/or equally enmeshed in methamphetamine culture.

Ultimately, the biological mother’s rights were terminated (she was pregnant again at the Severance hearing).  Now, six weeks after the severance hearing, the foster mom was meeting with an attorney for the first time to see what needed to happen.  Foster Mom, who is a physician in Chandler, was eager to pay my office to tie this up and complete this adoption so that they could get back to normalcy and so that she and her partner would not have to deal further with CPS, court hearings, Foster Care Review Boards (FCRB), etc.

Sunglasses Baby

As her check book came out on my conference room table, I had the rare pleasure of telling the moms that this would be free for them.  Pursuant to rules regarding ‘non-recurring adoption expenses’, the legal fees for the adoption can be paid by our Uncle Sam, irrespective of the financial situation of the parents.

Our law provides that, in the case of CPS placement adoptions, non-recurring adoption expenses are reimbursed (paid) by the government.  What this means is that, once a Parent’s Authorization for DES to Reimburse Attorney Directly form is signed and other basic pleadings filed, the adoption can proceed through its conclusion without the adopting family incurring costs.

To be clear, this only applies to CPS placement adoptions in Arizona.  Qualifying placement adoptions require that the child is legally free for adoption and cannot or should not be returned home, the child experiences of one numerous broadly defined special needs, and the adoptive parent cannot adopt without a subsidy.    Most other situations, such as private severance actions, step-parent adoptions, and second-parent adoptions, still require direct payment to the attorney.

Still, the availability of government reimbursement for some adoptions contributes substantially to the placement of children with wonderful parents without the added burden of adoption expenses.  The joy felt by a newly recognized adoptive family is something for which every Arizonan should feel pride.

 

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