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