Relocation/Move-Away cases are among the most complex and emotionally grueling matters in all of Family Law. These cases are not only difficult for the parties — they are equally difficult for the judge, who must weigh competing interests: One parent whose life will be improved by the move vs. the other parent who may be deprived of frequent and meaningful contact with the children.
When a parent wishes to move out of town, or out of state, with the children, significant legal issues arise, which include custody, parenting time (visitation), and child support. Both parents may find it beneficial to speak with a family law attorney before a move is made. With discussion and careful planning, a mother and father may be able to fashion a workable arrangement that benefits everyone and avoid a contested custody litigation. On the other hand, there are times when no amount of negotiation will bring about a successful resolution. In these cases, it will be up to a judge to make the final decision.
Both of our attorneys, Gary Frank and Hanna Amar, have many years of experience as an Arizona custody attorney representing parents in contested relocation and move-away matters. If you have questions about your rights as a parent, contact our office for a consultation.
FACTORS IN DETERMINING CUSTODY
In making a custody and/or relocation decision the Court is guided by the “best interests” of the child.
In determining custody, Arizona Revised Statutes, Section 25-403 requires the judge to consider all relevant factors, including:
- The wishes of the child’s parent or parents as to custody;
- The wishes of the child as to the custodian;
- 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;
- The child’s adjustment to home, school and community;
- The mental and physical health of all individuals involved;
- Which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent;
- Whether one parent, both parents or neither parent has provided primary care of the child; and
- The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding custody.
When a parent wishes to move away with the child, the Court must balance the interests of the nonmoving parent in having a meaningful relationship with the child against the prospect that the move might improve the quality of life for the moving parent and the child. This is a very tough decision for any judge.
Arizona Revised Statute, Section 25-408 provides the standard that the Court must use in making the decision on whether or not to allow the move.
Section “A” of the statute provides that “a parent who is not granted custody of the child is entitled to reasonable parenting time rights to ensure that the minor child has frequent and continuing contact with the noncustodial parent.”
Section “B” of the statute requires that “if by written agreement or court order both parents are entitled to custody or parenting time and both parents reside in the state, at least sixty (60) days advance written notice shall be provided to the other parent before a parent may do either of the following:
- Relocate the child outside the state; or
- Relocate the child more than one hundred miles within the state.”
Section “C” requires that this notice must be either sent by certified mail, return receipt requested, or formally served by a process server. This is a critical requirement because if the notice is not sent properly, then the parent moving away with the child is subject to court sanctions – and those sanctions may include taking custody away from that parent and awarding it to the other parent.
Section “D” provides that “within thirty (30) days after notice is made the nonmoving parent may petition the court to prevent relocation of the child.” It also provides that “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.”
Section “F” of the statute lists the limited circumstances under which a parent may be allowed to move prior to the expiration of the sixty (60) day notice period. It states:
- “A parent with sole custody or a parent with joint custody and primary physical custody who is required by circumstances of health or safety or employment of that parent or that parent’s spouse to relocate in less than sixty days after written notice has been given to the other parent may temporarily relocate with the child.”
- “A parent who shares joint custody and substantially equal physical custody and who is required by circumstances of health or safety or employment of that parent or that parent’s spouse to relocate in less than sixty days after written notice has been given to the other parent may temporarily relocate with the child only if both parents execute a written agreement to permit relocation of the child.”
In order for the parent wishing to move – and also the parent contesting the move — to best protect their legal rights, it is important to strictly comply with the statutory time limits. Failing to do so might result in a move taking place without the nonmoving parent having the chance to object; or it may result in severe sanctions for the moving party, including losing custody of the child.
BEST INTERESTS OF THE CHILD
Section “G” of the statute provides that in deciding whether to allow the move, or prevent it, the Court shall use the “best interests of the child” as its standard. The burden of proving that the move is in the child’s best interests is on the person seeking to relocate with the child.
The factors that the Court must consider in deciding whether or not to allow the move are listed in Section “I” of A.R.S. §25-408 which reads, in part, as follows:
I. “In determining the child’s best interests the court shall consider all relevant factors including:
- The factors prescribed under §25-403 (see above);
- 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;
- The prospective advantage of the move for improving the general quality of life for the custodial parent or for the child;
- The likelihood that the parent with whom the child will reside after the relocation will comply with the parenting time orders;
- Whether the relocation will allow a realistic opportunity for parenting time with each parent;
- The extent to which moving or not moving will affect the emotional, physical or developmental needs of the child;
- 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;
- The potential effect of relocation on the child’s stability.”
DECIDING WHETHER TO USE AN ATTORNEY
Child relocation and move-away cases are among the most complex and difficult matters in Family Law. Deciding to move with the child is often the most important choice a parent will ever make, and its impact on the lives of the parents and children is profound. Will the move benefit the children? Will it prevent the nonmoving parent from having a meaningful relationship with them? There is so much at stake.
Whether you are thinking about moving with the children, or whether you are a parent who wishes to prevent a relocation from taking place, you would be well-advised to seek a consultation with an experienced family law attorney.
At the Law Offices of Gary J. Frank P.C., our attorneys are caring and compassionate counselors who have a wealth of experience in dealing with relocation / move-away cases. They will guide you through the legal issues and help you avoid the snares that may result in sanctions or losing custody. If possible, they will help you to reach a peaceful resolution of the problem. If a negotiated solution is not possible, then he will be a strong and assertive advocate on your behalf.
To make an appointment for a consultation to discuss the issue of custody and relocation, contact our office today.