NOTE: EVERYTHING WRITTEN BELOW IS FOR INFORMATIONAL PURPOSES ONLY. IT IS NOT LEGAL ADVICE AND DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. READING A BLOG IS NO SUBSTITUTE FOR CONSULTING WITH AN ATTORNEY.
You are divorced and have children with your former spouse, or you were never married and have children with a former significant other. One day, the other parent announces that he or she will be moving your children to another state, making it much more difficult or impossible to see your children as often as you do now. What should you do?
Although the answer depends on your legal situation, each answer begins the same way: talk to the other parent. Some parents communicate better than others, but it does not hurt to try no matter how hostile the other parent behaves. If you emphasize not only what the move will mean to you but what it will mean to the children, you may make some headway. If the children are older, it may be easier to convince the other party to not attempt to move the children because older children often do not wish to leave their friends, school, community, and routine. You should also emphasize that children need regular contact with both parents. If you can get the other parent to realize that they would not only be taking the children from you, but taking you from the children, they may reconsider the move.
If you cannot convince the other parent to not move (my cynical side says WHEN you cannot convince the other parent), your next move depends on your situation. If you are the father, have never been married to the mother, and have never sought a court order regarding the children, you must act immediately. Children born out of wedlock in Arizona are in the sole custody and care of the mother - the father has no legal rights to the children. You should immediately file an action to establish paternity, legal decision making (custody), parenting time, and child support. You should also file a motion for temporary orders seeking an order for not only contact with the children, but also an order that the mother not move the children pending the outcome of the paternity case.
If you are the mother, have never been married to the father, and have no court orders regarding the children, the children are in your sole custody and care: the father cannot move the children without your consent. You should seek a court order anyway in order to establish paternity, a parenting plan, and child support, but your situation is not as urgent as it is for fathers in this situation.
If you are a married spouse and no one has filed for divorce or legal separation, either parent may move the children out of Arizona. However, once a spouse files for divorce or legal separation, the court issues an order that neither parent may move the children out of Arizona without a court order or the written consent of the other parent. Therefore, you can stop the move by immediately filing for divorce or legal separation.
Finally, the situation that most people facing the other parent who wants to move the children are in: you are divorced or never married and there is an order in place regarding the children. Under Arizona law, a parent may not move the children out of Arizona or more than 100 miles within the state after first giving 60 days written notice (mailed return receipt requested) or getting a court order or getting the written permission of the other parent if either of the following is true: the other parent has joint legal decision making (joint custody) or the other parent has parenting time (even if the moving parent has sole legal decision making). If you receive 60 days written notice of the proposed move, immediately file a petition with the court objecting to the move. The reason for the 60 days written notice is so that the non-moving parent can initiate an action in court opposing the move. If the other parent moves anyway, immediately call the police to make a complaint for custodial interference and file an enforcement and contempt action seeking the immediate return of the child to Arizona. Several years ago I had a client who ignored this advice and moved her child out of state. She regretted it.
I understand that in most states the parent who has custody or the parent with whom the children primarily live usually has an easy time getting a court order allowing a move out of state. In Arizona, however, it has been much more difficult. The trend seems to be that the parent wanting to move the children must demonstrate a compelling reason to do so. Also, the involvement and quality of the non-moving parent usually plays a major role in the judge's decision. For example, a parent who rarely exercises parenting time and who is an alcoholic will make it much easier for the other parent to move than a parent who exercises equal parenting time and has no substance abuse issues.
The statute governing this issue is A. R. S. Section 25-408, which sets forth the factors that the court must consider in deciding this issue. The burden of proof is on the parent proposing the move to show that relocating outside the State of Arizona is in the child's best interest. In determining the child's best interest the court shall consider all relevant factors including the following factors:
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.
8. The past, present and potential future relationship between the parent and the child.
9. The interaction and interrelationship of the child with the child's parent or parents, the child's siblings and any other person who may significantly affect the child's best interest.
10. The child's adjustment to home, school and community.
11. If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time.
12. The mental and physical health of all individuals involved.
13. Which parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent. This paragraph does not apply if the court determines that a parent is acting in good faith to protect the child from witnessing an act of domestic violence or being a victim of domestic violence or child abuse.
14. Whether one parent intentionally misled the court to cause an unnecessary delay, to increase the cost of litigation or to persuade the court to give a legal decision-making or a parenting time preference to that parent.
15. Whether there has been domestic violence or child abuse.
16. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time.
17. Whether a parent has complied with the requirement to take the parent information program class.
18. Whether either parent was convicted of an act of false reporting of child abuse or neglect.
Often, an attorney with experience with this issue can really help. Whether you talk to me or talk to another attorney, talk to an experienced family law attorney. Good luck!
