Given the current economy and job market, you may find yourself faced with the prospect of having to move out of the State of Arizona or perhaps within the State but a significant distance away from your current home. Employment issues are perhaps the most common reason people say they must relocate, however, there could be other reasons someone may need to do so such as family obligations or health concerns. The family court system does not have the authority to restrict your relocation – that is, if you want to move, you are certainly capable of doing so absent other extenuating circumstances. The family court becomes involved when you wish to relocate with your child for whom there is a written agreement or court order for custody and/or parenting time. Without the consent of the other parent, a relocation can become a highly contested court matter especially given the “black and white” nature of the “move or not move” decision.
A relocation action begins when one parent wants to move with their child more than 100 miles away within the State of Arizona or out of the State of Arizona entirely, both parents presently live in Arizona, and the non-moving parent is entitled to at least some parenting time. If the parties agree to the parent’s relocation, it is not necessary to begin litigation in court (it is, however, recommended that you put your agreement in writing and submit it to the court for approval so it can become an Order of the Court).
Relocation actions in Arizona are governed by A.R.S. § 25-408. That statute requires certain action by both parents:
- The parent who wants to move must provide notice to the non-moving parent. That notice has to be in writing and has to be either certified mailed or served upon the non-moving parent. The notice must be given at least 60 days before moving.
- Within 30 days of giving notice, the non-moving parent may try to prevent the relocation by filing an action with the Court. If the non-moving parent waits longer than this 30 day window, they could seriously jeopardize their ability to object to the move.
Depending on the circumstances of the current orders for custody and parenting time and of the move, the moving parent may be entitled to move with the child temporarily during the 60 day window and/or while the court is making its final determination.
Once the relocation becomes a matter for the court, the judge will have to base their decision on several factors:
- The “best interests” factors of A.R.S. § 25-403.
- The reason behind the relocation and the objection to the relocation. That is, are the relocation and the objection to it for valid reasons or is one or the other an attempt to deprive the other parent from having a meaningful relationship with the child or interfere with their access? Simply put: is either party acting in bad faith?
- Whether the move is likely to improve the quality of life for the moving parent and/or the child.
- Whether the moving parent will comply with the non-moving parent’s court-ordered parenting time in the event the relocation is granted.
- Whether the non-moving parent with have a “realistic opportunity” for parenting time with the child if the relocation is granted.
- Whether and how much the relocation will affect the “emotional, physical or developmental needs of the child.”
- Whether the proposed move or objection to the proposed move are financially motivated (i.e. whether one of the parents is trying to obtain a better position for child support purposes).
- The effect of the proposed move on the child’s stability.
- It is very important to note that the moving parent has the burden of showing that the move is in the child’s best interests based on consideration of the factors described above. This burden effectively means that it is up to the moving parent to prove that it is better for the child to move rather than it being up to the non-moving parent to prove that it is better for the child to stay.
It is highly recommended that you seek experienced counsel familiar with relocation matters if you wish to relocate or if you are facing the possible relocation of your child with the other parent.