Under Arizona law, when you want to move with your minor child and you share custody with another individual, the best place to start with looking at the issue is by reviewing any court orders that are in place and any written agreements you have with the nonmoving parent. If the issue of child relocation is not covered by your court order or written agreement, Arizona has a specific process you must follow in order to relocate. This writing covers relocation that is not already covered by a court order or a written agreement that was made within one (1) year of the relocation. Cf. ARIZ. REV. STAT. ANN. § 25-408(C).
Relocating with your minor child, when you share custody, becomes an issue when you attempt to move out of state or more than one (1) hundred miles from where you resided when the child custody order was entered. See ARIZ. REV. STAT. ANN. § 25-408(A). When this happens, one option is to file a petition with the court to obtain a judge’s permission before you relocate. See § 25-408(C). Some individuals find this proactive approach more appealing because it offers the comfort of certainty before making the costly decision of moving. The down side, however, is that court cases can take a while to work their way through the system and not every person has the luxury of waiting to find out if a judge will approve the relocation before it happens.
Another option is to rely on the notice statute, which involves providing the nonmoving parent with a forty-five (45) day written notice and waiting to see if they file a court action to prevent relocation. See § 25-408(A); § 25-408(C). Generally, the forty-five (45) day notice must be sent by certified mail, return receipt requested. See ARIZ. REV. STAT. ANN. § 25-408(B). Arizona statute provides that “[t]he court shall sanction a parent who, without good cause, does not comply with the notification requirements. . . .” § 25-408(B).
“Within thirty days after notice is made the nonmoving parent may petition the court to prevent relocation of the child.” ARIZ. REV. STAT. ANN. § 25-408(E). “After expiration of this time any petition or other application to prevent relocation of the child may be granted only on a showing of good cause.” Id. It is important to note that if a child is relocated under Section 25-408 of the Arizona Revised Statutes, “unless otherwise ordered by the court, all parties must continue to comply with current court orders, regardless of distance moved or notice required.” Id.
There are some very limited exceptions that should be mentioned. First, temporary relocation of the minor child, before the forty-five (45) day period has expired, is permitted under Section 25-408 when the relocating parent has sole legal decision-making or joint legal decision making with primary residence of the minor child AND the relocation in less than forty-five (45) days is “required by circumstances of health, safety, employment or eviction of that parent or that parent’s spouse . . . .” ARIZ. REV. STAT. ANN. § 25-408(F)(1). When the parties have joint legal decision-making and substantially equal parenting time, and relocation is required in less than forty-five (45) days after the notice is made, the temporary relocation is only permitted by written agreement of both parents. ARIZ. REV. STAT. ANN. § 25-408(F)(2). Again, these are only temporary relocations and it is possible that a court could order the return of the minor child even if you have already moved.
The statute also sets forth what the court must consider in making a decision on allowing or preventing relocation. ARIZ. REV. STAT. ANN. § 25-408(G); ARIZ. REV. STAT. ANN. § 25-408(H); ARIZ. REV. STAT. ANN. § 25-408(I). Generally, the determination is guided by the minor child’s best interests, and the burden of proof falls on the parent who wants to relocate with the minor child. See § 25-408(G). Furthermore, when allowing or prohibiting relocation has already been addressed by a parenting plan or prior written agreement, the court may not deviate from the plan or agreement unless it first “finds that the provision is no longer in the child’s best interests.” § 25-408(H). “There is a rebuttable presumption that a provision from any parenting plan or other written agreement is in the child’s best interests.” Id.
Finally, under Section 25-408(I), the Arizona Revised Statutes provide that in determining the child’s best interests the court shall consider all relevant factors including:
1. The factors prescribed under section 25-403.
2. 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.
3. The prospective advantage of the move for improving the general quality of life for the custodial parent or for the child.
4. The likelihood that the parent with whom the child will reside after the relocation will comply with parenting time orders.
5. Whether the relocation will allow a realistic opportunity for parenting time with each parent.
6. The extent to which moving or not moving will affect the emotional, physical or developmental needs of the child.
7. 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.
8. The potential effect of relocation on the child’s stability.
If you are considering relocating with your minor child, over whom you have shared custody, and you need the guidance of an experienced and compassionate law firm, do not hesitate to contact Huffman-Shayeb Law, PLLC to set up a consultation and discuss your options.
Disclaimer: This publication is for educational and informational purposes only, and represents Huffman-Shayeb Law, PLLC’s understanding of the present state of Arizona law. This publication does not constitute legal advice or counsel, and should not be construed as a comment on the merits of any particular case. It should be noted that the laws and requirements of the State of Arizona may change at any time and that this information may not be complete or correct.