Archive for the ‘Child Custody’ Category

A Proposed Change In Arizona Family Law Statute Could Make It More Difficult For You To Move After A Divorce

Posted on: February 13th, 2013 by Kevin Jensen

Imagine you are a divorced single parent living in Mesa, Arizona and you get a great job that provides you and your children a good living and benefits but would require you to move to Scottsdale. Although that is not terribly far away, the move would require you to move further away from your children’s other parent. Or, imagine after several years of being a single divorcee’ you meet your soulmate and decide to get married. Your new spouse has a great house and a great job in Glendale and you decide that you want to move to his or her house that will have plenty of room for you and your kids. Now imagine that before you can make that move you will have to get the permission of your ex-spouse to move further away from him or her or get a court order allowing you to make that move before you can move anywhere with your children, including across town!

This seems absured, right? If a proposed change to Arizona’s Parenting Time and Relocation statute are passed, that is exactly what you will have to do. Under Arizona’s current law, a parent cannot relocate a child more than 100 miles from the other parent without either obtaining consent of the other parent or obtaining a court order. In a previous blog I discussed Arizona’s 100 mile rule and the procedures that need to be followed to relocate children more than 100 miles from the other parent. The proposed changes in the law would require the moving parentto give the non-moving parent sixty days notice of his/her intent to relocate the child/children. There is no limitation on how far away the moving parent intends to move before the sixty day notification is required.

In my examples above, if a parent wants to move from Mesa to Scottsdale or from Mesa to Glendale, regardless of the reason, he or she must give the non-moving parent sixty days notice of his or her intent to move with the chidren. The parent will then be required to provide the reason for the move, but must also file a copy of the notice with the family court and provide the court a reason for the move. Following proper receipt of the notice, the non-moving parent would have thirty days to object to the move. This also would require the filing of an objection with the court. If an objection with the court is filed by the non-moving parent, the moving parent then has to file a Petition to Relocate and the court gets to decide.

As with most statutory changes, there are pros and cons. Here, the clear design of the proposed changes are to make sure that non-moving parent’s parenting rights (including visitation) are disturbed as little as possible; at least not without the non-moving parent having a say in the decision to relocate. There are some good reasons for this. For example, a move across town can have implications on things such as parenting time and participation in activities by the non-moving parent. A trip across the Phoenix metro area can take an hour or more each way. This time can seriously impact a visitation schedule that involves one-week night per week with the non-custodial parent. It can affect the non-moving parent’s ability to take part in school events or extracurricular activities. The proposed changes favor a non-custodial parent’s rights and ability to participate as much as possible in the parenting of the children.

In this case, however, I think the negatives outweigh the postives. For one thing, the proposed statutory changes may limit natural life changes that can benefit the children. A mother who is struggling to provide for her children may find it cost prohibitive to spend two hours per day traveling across town for work. It may prohibit mothers and fathers from getting remarried, which in some instances can be a tremendous benefit to the children. Imagine finding Mr. or Mrs. right and telling them that you can only marry them if they agree to live near your ex. I think the most troubling possibility is that it places an ex in a position of power. I have have had many cases involving bitter ex-spouses who would love nothing more than to make life difficult for their ex husband or wife. Here, a move even a few blocks or miles away would require the consent of the ex-spouse. An ex-spouse, who for no other reason than to be spiteful, could easly refuse consent and then the whole matter would have to go through the court system costing thousands of dollars. Moreover, the family court system does not always move quickly. In some cases, waiting for a court decision on relocation is not practical and could result in lost opportunity.

I think the 100 mile rule is as reasonable a solution to the problem of relocation as currently exists. Although a move across town may be inconvenient for the non-moving parent, it can be workable. Perhaps changes that require the moving spouse to incur more of the inconvenience, such as transportation to the non-moving spouse for parenting time would be more reasonable. I think there are a number of other solutions to the problem of protecting a non-moving parent’s visitation time than potentially locking a single parent into a geographical location that only benefits one person (the non-moving parent) in the family.

In my opinion, the proposed statutory changes have the potential to create far more problems than they solve. In the long run SB 1072 will likely result in more fights, more legal expenses and more court costs. I encourage anyone who may be affected by these statutory changes to make sure their state representatives know how you feel about these proposed changes. If you would like to review the text of the proposed changes to the statute, you can view them here.

I Want to Leave Arizona, But Can I Take the Kids With Me? A Discussion About Arizona’s Relocation Statute.

Posted on: September 21st, 2012 by Kevin Jensen

Divorce and paternity cases are often very difficult and very emotional.  The most emotional and difficult issues in almost any divorce case, and certainly every paternity case are issues involving the children.  It has been my experience as a Mesa, Arizona family law attorney, that both parents, no matter how much at odds they may be with each other, both love their children and want to do what he or she feels is best for them.  However, each parent’s idea of what is in the best interest of the child is often different and can lead to a great deal of contention.

I have observed over the years that once the emotion and difficulty of the divorce or paternity case is over and the dust settles, life goes on for most people.  Over time, in many cases, the hard feelings that existed during the legal aspect of the case go away and most people find a way to tolerate each other and in many cases they get along rather well over time.  As life goes on for the parents, it is typical that one or both parents eventually find someone new in their life and re-marries.  As in any change in life, new relationships and some of the issues that come with them, often create new challenges that can impact the children.  In some instances the challenges that come with new relationships or other opportunities in life, such as work, can have a drastic impact on both the parents and the children.

A frequent challenge many former couples encounter; sometimes years after a divorce or paternity matter is resolved, is when one parent wants to relocate far from the other parent or even out of Arizona alltogether.  There may be a number of very good reasons for the proposed move.  In some cases, one parent may need the assistance of family members who are living out of state.  Another common reason for re-location is job opportunities that may arise for either a parent or his or her new spouse.  Regardless of the reason for the proposed move, the most obvious problem that arises when one parent wants to move far from the other parent is that the non-moving parent is likely to have his or her parenting time with the children reduced or significantly limited.  A drastic reduction in parenting time can be difficult and traumatic for both the non-moving parent and the children.

A parent who wishes to relocate his or her children more than 100 miles from the other parent must follow the procedure found in A.R.S. §25-408, Arizona’s relocation statute.  Under this relocation statute, if both parents are entitled to joint legal decision making or unsupervised parenting time and both parents reside in the State of Arizona, then, the parent who wishes to relocate must provide the non-moving parent sixty (60) days written notice before that parent will be allowed to: 1) relocate the child outside of the state or 2) relocate the child more than 100 miles within the state.

The written notice to the non-moving parent must be sent by certified mail return receipt requested.  This is very important because failure to follow this procedure exactly could result in a court invalidating the move because the moving parent failed to provide the non-moving parent proper notice of the prospective move that will surely impact his or her parenting time.  In fact, the Arizona legislature felt this notice requirement was so important that it authorized family court judges to sanction parents who do not comply with this notice requirement.

Once the moving parent has provided the required notification of the proposed move, the burden then shifts to the non-moving parent to take action, if he or she so desires.  According to the statute, the non-moving parent has thirty (30) days, after receiving the written notice as discussed above, to file a petition with the family court to prevent the relocation of the child.  This is an extremely important deadline.  A parent who files his or her petition after the thirty (30) day deadline has passed will only be able to prevent the relocation of the child by demonstrating to the court his or her reason for failing to timely file his or her petition to prevent the relocation.  This can often be a very difficult burden to meet.

If the non-moving parent does file a petition to prevent the relocation within the time allowed under the statute, the Arizona family law judge will set an evidentiary hearing (often many months after the petition is filed) to determine whether or not to allow the children to be relocated.  In some limited circumstances, a family court judge may allow a temporary relocation until the evidentiary hearing can be held.

When determining whether or not to allow one parent to relocate children out-of-state or more than 100 miles within the state, the judge must determine, as in any issue involving children, whether allowing the child to relocate is in the child’s best interest.  The parent who is seeking to move has the responsibility to provide evidence to the family court judge that the relocation is in the child’s best interest.  This evidence may include such factors as the age of the child, which parent the child/children have primarily lived with, where the children will be most comfortable living and even the child’s desires.  The family law court must also, where practicable, consider appropriate arrangements to ensure the continuation of a meaningful relationship between the child and both parents.

What is in the child’s best interest and how to ensure the continuation of a meaningful relationship between the child and both parents is what makes relocation cases so very complicated.   The distance between the child and non-moving parent is a very difficult bridge to gap.   A court can absolutely determine that allowing the moving parent to relocate with the children would not be in the children’s best interest and may prohibit the moving parent from relocating the children.  In other instances, depending on the specific circumstances of the case, the relocation is allowed and the court will try to create a parenting plan that will allow as much frequent and meaningful parenting time for the non-moving parent as possible.  This can include such things as increased parenting time during summer or other holiday vacations for the non-moving parent and a requirement that the moving parent share in the travel expenses related to the non-moving parent exercising parenting time.

Relocation with children can be very complicated.  Because there really is no middle ground in most cases the losing party can be deeply impacted and old wounds can be reopened.  A decision to move out of Arizona or more than 100 miles from another parent should not be taken lightly.  Because of the complicated issues involving relocation, consulting with an experienced Arizona family law attorney is very important.

Legal Custody in Arizona — Who Gets to Decide?

Posted on: August 28th, 2012 by Kevin Jensen

One of the most frequent questions I get as a Mesa Family Law Attorney is: can I get full or sole custody of my child or children?  It is my experience that many clients going through a divorce don’t entirely understand what legal custody is.  It is not uncommon for a client going through a difficult divorce to tell me that he or she wants the minor child or children to be with him or her the majority of the time… “I want full custody!”

The truth is, it is not an easy thing to get full or “sole custody” of a minor child in Arizona.  What I think most of my clients really want, and are asking for, is for the court to award him or her, the majority of the parenting time with the child or children.  There is a big difference between legal custody and parenting time.  It is important to understand that, except for in specific circumstances, it is unlikely an Arizona family law judge will award one parent sole custody of a child.  It is not uncommon, however, for a judge to award one parent more parenting time than the other.  As in all cases, the specific circumstances of the case really do dictate what a family law judge may decide regarding these two very important issues.

Legal custody is really the ability of the parent or parents to make decisions regarding their minor child or children.  These decisions include such things as educational decisions; religious decisions and medical decisions.  A parent who is awarded sole custody of a child will have the legal authority to make all of these decisions on behalf of their child without input from the other parent.  Because sole custody deprives one parent of the ability to make decisions about his or her child, it is not taken lightly.  Almost every Arizona family court judge I have appeared before has shown a preference for a child to have both parents as actively involved as possible in their children’s lives.  For this reason, most Arizona family law courts will award parents joint legal custody.  This requires the parents to continue to make these important decisions jointly on behalf of their children.

When deciding legal custody or legal decision-making, Arizona family law judges are required to consider a number of factors.   These factors are found in A.R.S. 25-403 and include the following:

  • The relationship between the parent and child, past, present and future.
  • How the child interacts with each parent and the interrelationship of the child with other siblings or any other person (such as a grandparent) who affect the child’s best interest.
  • How the child adjusts to home, a school or a community.
  • The wishes of the child, if the child is of suitable age and maturity.
  • The mental and physical health of all individuals involved.
  • Which parent is the most likely to allow ongoing and meaningful contact with the other parent. ( Note that the court will not apply this factor if the court finds that one parent, in good faith, is trying to keep the child from a domestic violence or abuse situation)
  • Whether one parent tries to mislead the court or intentionally delay the proceedings to unnecessarily increase litigation costs.
  • Whether there has been domestic violence or child abuse.
  • Whether one party has used coercion or duress to obtain an agreement from the other parent.
  • Whether a parent was convicted of a false act of child abuse or neglect

Each of the factors must be carefully considered by the judge before making a decision regarding both custody (legal decision making) and parenting time.  In weighing each of these factors, the court must always consider what is in the best interest of the child.  The complexity of these factors make custody fights some of the most difficult and emotional issues in any Mesa Arizona child custody case.  Because of the difficulty of this issue, having an experienced family law attorney in your corner can make all the difference.

I have long held the belief that knowledge is power in family law cases.  Clients who have an understanding of what the courts must consider before making these difficult and important decisions always have a leg up in the case.  This knowledge eliminates a lot of the fear and uncertainty and helps the client to focus on what is really important.  When it comes to issues involving custody, this approach may be the most important part of any case.

 

If you have any questions about a Child Custody case in Mesa, AZ Please give my office a call.

The Law Offices of Kevin Jensen

Family Law Attorney Mesa AZ

3740 E. Southern Ave.

Suite 210 Mesa, AZ 85206

Phone: (480) 999-2321

 

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