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Co-parenting is hard enough when both parents reside in the same part of the country. When one parent wants to relocate to another city or state, the problem becomes even more complex.
Whether your ex-wife or ex-husband is seeking to relocate for a job, a spouse, or simply a fresh start, you might be wondering whether she can take your child out of state without permission.
The good news is that you have legal recourse in the event that your co-parent tries to move away from you. Keep reading to learn about how custody decisions work in the event of a relocation.
Physical Vs. Legal Custody
If you find yourself dealing with a spouse who wants to relocate with your child, it’s important that you understand the difference between physical and legal custody. When a parent has physical custody, that means the child lives with them for a majority of the time. In most cases, Arizona judges will grant parents joint physical custody except in cases when one party is deemed unfit.
On the other hand, legal custody signifies that a parent has the right to make decisions about their child’s life. If you have sole legal custody, you can determine where your child goes to school and what medical procedures they undergo, among other decisions.
Parents with joint legal custody have an equal right to make choices about their child’s welfare, regardless of where the child lives a majority of the time. However, it’s worth nothing that a parent with sole physical custody often has the upper hand when it comes to winning a relocation case.
Arizona Relocation Laws
Arizona law differentiates between local moves and relocations. If a co-parent is moving a child to a different house in the same city or even to a house in a nearby city, the courts are unlikely to interfere.
However, if the parents share joint physical or legal custody, the relocating parent usually has to notify their co-parent 45 days before relocating to another state or moving 100 miles within the same state. At this point, the parent who isn’t moving can petition the court to stop the relocation.
It’s important to note that the parent looking to relocate has to send their notice by certified mail, return receipt requested, or arrange for a process server to deliver the message. Under limited circumstances, the relocating parent may be able to move before the court renders a formal decision.
If your wife is trying to take your child out of state against your will, talking to a family law attorney is the best way to protect your custody rights.
Deciding Relocation Requests
Once a petition has been filed to prevent relocation, the judge will evaluate the specifics of the case before making a decision. At this time, both parents will have the opportunity to submit evidence on their behalf.
Additionally, each side may call friends, relatives, teachers, and other witnesses to testify in the case. The goal of the court is to determine whether or not the relocation will have a negative effect on the child’s welfare.
Here are the factors that courts generally consider when making decisions about a relocation request:
- Whether the relocating parent’s reasons for wanting to move are valid
- Whether the move is punitive and designed to interfere with the other parent’s visitation rights
- Whether the move will affect the child’s quality of life for the better or worse
- Whether the relationship the child has with each parent will be affected by the move
- Whether the child has relationships with siblings that will suffer in the event of a move
- The child’s preferences (depending on age)
In the past, courts have decided against parents who are seeking to move for purposes deemed unreasonable. For example, if a mother is trying to move out of state to pursue a career as a hairstylist, but lacks training or experience in the field, the judge may rule against the relocation.
Ultimately, the court will strive to balance each parent’s rights and preferences with what’s in the child’s best interest. If the court rules against a parent’s relocation request, the parent in question may still move, but they won’t be able to take the child with them.
Understanding Parental Kidnapping Laws
A parent who violates a court order regarding child custody may be guilty of custodial interference. This crime results when one parent attempts to disrupt the custody rights of the other. In some cases, instances of custodial interference can be mild, such as cancelling a scheduled visitation. Other cases are more serious and may result in significant legal consequences.
A severe type of custodial interference, parental kidnapping occurs when a child is transported somewhere in violation of the custody order.
If your ex-wife or ex-husband takes your child out of state without permission, or relocates more than 100 miles within the same state, she may be guilty of parental kidnapping. Here are some examples of situations that may constitute parental kidnapping in the state of Arizona:
- Taking, enticing, or keeping a child from their lawful custodian before or after the court makes a custody determination
- Physically withholding a child from a parent who shares legal decision-making rights in the eyes of the court
- Refusing to hand a child off to a lawful custodian or obstructing a child’s lawful return to the custodian
In cases involving custodial interference, the rightful custodian can be a parent, grandparent, or other party. Parents are not permitted to keep their child away from a legal custodian.
Note that individuals convicted of parental kidnapping face up to four years in prison, probation time, and a fine of $150,000. Talking to a family law attorney is the best way to protect your rights as a parent while avoiding legal consequences.
Get Help Protecting Your Parental Rights
Navigating custody issues can be stressful. At JacksonWhite Law, our experienced family law attorneys specialize in handling child custody cases that involve relocation and other challenges. To learn more about how we can help, contact us using the form or phone number below.
Call the Family Law Team at (480) 467-4348 to discuss your case today.
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