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Custody battles frequently arise when one parent wishes to move, particularly when the new residence is out of state. Parents have a right to nurture their relationship with their child, which is difficult to do when they are separated from their child by distance. In light of this, courts are generally reluctant to approve out of state relocation unless it is genuinely in the child’s best interest. Courts consider several statutory factors when determining whether a proposed move is in the child’s best interest, including:
- The wishes of the child and parents as to where the child will reside.
- How well the child is adjusted to his or her present environment.
- The relationship between the child and the parents.
- Which of the parents has primarily cared for the child.
- Whether the parents are acting in good faith.
- Whether the move will improve the child’s quality of life and well-being.
- The parent’s motives for moving.
- Other relevant factors.
Whether you are moving or the other parent is moving, you may need to involve the court to protect your parental rights. An Arizona family law attorney is best equipped to deal with relocation issues.
Child Custody Relocation Laws in Arizona
Child custody in Arizona is defined as “legal decision-making” for the child and visitation is known as “parenting time”. The term “child custody” is no longer used, effective January 1, 2013. The court can order one or both parties to have legal decision-making authority for the child(ren) and consider many factors, falling under A.R.S. 25-403. In the case of joint legal decision-making authority, both parents must work together to make decisions regarding the child. If one parent is granted sole legal decision-making authority, they make decisions about the child without consenting the other parent as long as it is within the best interests of the child.
Arizona’s court does not favor one parent over another, but finds in the best interest of the child. Care for the child is the most important issue following the separation or divorce of parents. As a note, this is information, not legal advice. This article acts to provide general information about legal decision-making and parenting time for a child. For legal advice, seek out an experienced lawyer to help with your specific case.
Notice and Consent
Unless the legal decision-making parent is proposing a move as a result of the abuse of the child by the other parent, relocation is a fairly long process. In Arizona, if both parents are given to joint legal decision-making authority or parenting time and both parents live in the state, at least forty-five (45) days’ advance written must be provided to the other parent before a parent may relocate the child.
The notice must be sent by certified mail, with a request for a return receipt. A parent who does not comply with the notification requirements will be sanctioned by the court. The court may also impose a sanction in accordance with the child’s best interests.
If the arrangement for relocation is made by a court order, or written agreement by both parties, and is dated within one year of the prospective move, a notice does not have to be sent by the legal decision-making parent relocating the child.
While most parents sharing joint legal decision-making authority decide to live within a reasonable distance to each other, it is not uncommon for the parent the child primarily lives with to relocate. It is courteous to inform the other parent of any moves, but the legal decision-making parent is not obligated to give notice unless the child’s relocation is out of state or further than one hundred miles from the child’s current home within the state.
Petition of Relocation Prevention
Within thirty days after the notice is made, the non-moving parent may petition to have the court prevent the child from relocation. If the non-moving parent petitions the relocation, they must prove that the move is not within the child’s best interest or it is not in good faith.
However, despite a petition, if the parent with sole decision-making or parent with joint legal decision-making and primary residence of the child is required to move due to extenuating circumstances such as health, safety, employment, or eviction in less than forty-five days after written notice, that parent may temporarily relocate the child.
Good Faith Burden of Proof
Courts consider a number of factors when making the decision on a relocation of a child. All factors dictated under A.R.S. section 25-403 in addition to what is best for the child. The parent seeking relocation with the child must prove that the move is within the best interest of the child, in good faith, and for a legitimate reason. The court takes into account the child’s relationship with the non-moving parent and whether relocating will interfere with that relationship, the child’s relationship to their community, and if the child will be able to maintain the level of education, spiritual, and recreational activities if relocated. Other considerations include whether the move provides an advantage for the child’s quality of life, allows realistic opportunities for both parents’ parenting time, and the emotional, physical, or developmental effects on the child’s stability.
Visitation Schedule, Travel Costs, and Modification of Child Custody
Long distance moves can make visitation for the non-moving parent difficult. The relocating parent is not required to propose a visitation schedule, but the court will determine whether the move is within the child’s best interests. Remaining practical, the court will make arrangements to ensure that the child continues to have a meaningful relationship with both parents despite location.
In some cases of relocation, the moving parent allows for the child to have longer vacations with the non-moving parent as an act of good faith to continue the relationship between the child and the non-moving parent. However, regardless of distance, both parents are legally obligated to uphold the court’s decisions about parenting time and current orders. The court won’t deviate from any parenting plan or other written agreement unless it is no longer is in the child’s best interests.
To modify a legal decision-making and parenting time order, a motion with the court must be filed. In most cases to make any change to the order, one year must pass since the original order, an allowance is made if there is reason to believe the child is in a poisonous environment, six months have passed since a joint legal decision-making was entered and the other parent has not followed through, or if evidence of domestic violence is present at any time during joint legal decision-making authority.
Access to Records
Regardless of custodial status, both parents are entitled to access any and all information about the child as long as it is stated in the legal decision-making and parenting time agreement. This is true for most cases, unless the release of that information could place the child or parent(s) in danger. This includes prescription medication, school records, and any other information the court finds essential to maintaining the child’s physical, mental, moral, or emotional health. A court can limit the access to a child’s records if it is determined that the parent in question could put the child in danger.
Our family law team is dedicated to providing our clients with fresh starts, and while your legal issues may be challenging, we’ll do our best to offer a positive experience along the way.
Call the Family Law Team at (480) 467-4348 to discuss your case today.
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