Arizona statute ARS 25-408 discusses the rights of each parents, in regard to their children. This is an important statute because it will help to govern divorces that involve custody, or any other custody related matters. It outlines the parents’ rights about parenting time, relocation of children, exceptions to these rules, enforcement of the rights, and access to prescription medication and records.

These statutes can be confusing, so it is wise to look into their meaning and potentially discuss their implications in your situation with an experienced child custody lawyer. Custody related issues can be high stress, it can be extremely beneficial to have someone on your side that understands the laws governing the situation, understands your needs, and will fight for the best outcome possible. With all the stress of dealing with custody battles, having someone in your corner can relieve some of the added stress and uncertainty, which can be priceless.

You do have the right to address custody issues on your own, just be wary as once a court order is in place, it is legally enforceable until you can have it modified. If both parties are able to work together regarding the custody issues, this is ideal because it will make it a much faster, cheaper, and easier situation for everyone involved. If the parties can come to an agreement, they simply need to present their agreement in court to be made official and enforceable.

Whether you are representing yourself in your custody case or have hired an Mesa family law attorney, it is recommended to still read and understand the statutes to some degree, so you can better consider your options available. If you are representing yourself however, it is especially important because the other side may try to trick you into agreeing to something that you did not realize the long-term implications of, or that you had additional rights.

Custody is generally a battle, come prepared to the battle so you and your children are protected.

ARS 25-40: Relocation

Relocation of children is the main focus of this section and addresses the laws governing the ability to relocate children and to petition to not allow the other side to relocate with the children.

Notice of Relocation

This statute governs the situation if by court order or by written agreement, both parents share joint legal decision-making and parenting time. If your situation follows these guidelines then the following applies:

At least 45 days advance written notice must be provided to the other party before they can:

  • Relocate the child/children out of state
  • Relocate the child/children more than 100 miles away within the state

The 45 day courtesy is to ensure proper time for the opposing party to petition to block the relocation, or make arrangements regarding the relocation. The following is required regarding the notice:

  • Notice must be sent by certified mail (to ensure delivery and track timeline)
  • Return receipt requested for the certified mail

If a parent does not abide by these rules and provide proper notice, the court can sanction (penalize) them and affect their parenting rights. The court will never make a sanction that will negatively affect the children, but they do have the ability to diminish rights and block relocation.

Response to Notice of Relocation

Within 30 days of receiving the notice, the nonmoving parent has the right to petition to prevent the relocation of the child. This petition will be submitted to the court to be reviewed. There will likely be a hearing to discuss the costs and benefits associated with the relocation in order to determine if the relocation is in the best interest of the child.

The burden of proving good cause for the relocation falls on the parent wishing to relocate. If the relocation seriously affects the parenting rights of the unmoving parent then the parent wishing to relocate will need to provide good cause for the relocation and help determine ways to deal with the effects of the move.

If the unmoving parent does not submit a petition to prevent relocation in those 30 days, then they will be require to prove good cause if they wish to prevent the relocation.

Pending the Court Determination Regarding Relocation Prevention

Once the notice is provided and a petition to prevent relocation is filed, the court will begin their research into the situation to determine whether the relocation is in the best interest of the child and whether the effect on the unmoving parent’s rights can be mitigated through other means and allow the relocation to occur.

There are two circumstances in which a parent can temporarily relocate while they are waiting for final determination from the courts. According to ARS 25-408 F1-2:

  1. A parent with sole legal decision-making or a parent with joint legal decision-making and primary residence of a child who is required by circumstances of health, safety, employment or eviction of that parent or that parent’s spouse to relocate in less than forty-five days after written notice has been given to the other parent may temporarily relocate with the child.
  2. A parent who shares joint legal decision-making and substantially equal parenting time and who is required by circumstances of health, safety, employment or eviction of that parent or that parent’s spouse to relocate in less than forty-five days after written notice has been given to the other parent may temporarily relocate with the child only if both parents execute a written agreement to permit relocation of the child.

Note, if it is in a court order or a written agreement that neither parent may relocate the child, then the court will not deviate from those original plans. Unless the parent wishing to relocate the child can prove that it is in the child’s best interest to move, then the court will uphold the agreement and not allow the relocation.

Determining the Child’s Best Interest Regarding Relocation

The main factors that will be considered by the court to determine the child’s best interest can be found in ARS 25-403.

ARS 25-408 adds the following considerations:

  1. Whether the relocation is being made or opposed in good faith and not to interfere with or to frustrate the relationship between the child and the other parent or the other parent’s right of access to the child.
  2. The prospective advantage of the move for improving the general quality of life for the custodial parent or for the child.
  3. The likelihood that the parent with whom the child will reside after the relocation will comply with parenting time orders.
  4. Whether the relocation will allow a realistic opportunity for parenting time with each parent.
  5. The extent to which moving or not moving will affect the emotional, physical or developmental needs of the child.
  6. The motives of the parents and the validity of the reasons given for moving or opposing the move including the extent to which either parent may intend to gain a financial advantage regarding continuing child support obligations.
  7. The potential effect of relocation on the child’s stability.

Relocation is a tricky situation, so it is important to understand the guidelines you must follow to ensure that you adhere to the rules to best allow you the chance to relocate, or prevent a relocation. Remember that it is always about what is in the child’s best interest that the court really care about.

Call the Family Law Team at (480) 467-4348 to discuss your case today.

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