Navigating Relocation with Children After Divorce in Arizona

Introduction

Relocating after a divorce is no issue if there are no kids involved. If you have a minor child with your ex though, the child is the subject of a custody and parenting plan, and you want to relocate the child with you,  it may not be so easy. The big issue is relocation is likely to have a significant impact on the non-relocating parent’s parenting time. The parent who is not relocating will inevitably see the kid(s) less due to increased geographical distance.

It is important to understand and follow the Arizona laws and procedures with respect to location. Planning ahead and following the rules will increase the odds that you can successfully relocate with the child(ren).

Understanding Arizona’s Relocation Laws

Arizona Revised Statute 28-408 covers the requirements for relocating. ARS 28-408 comes into play when:

1. both parents are entitled to joint legal decision-making or parenting time,
2. both parents reside in Arizona, and
3. one parent wants to move out of state or more than 100 miles away.

Of course moving 95 miles away within Arizona is going to cause some logistical issues, but it is not going to implicate the requirements of 28-408.

Notice Requirements

If you are looking to relocate with your child, you must provide advance notice to the non-relocating parent. The relocating parent must notify the non-relocating parent in writing at least 45 days before the move. If the relocating parent fails to properly notify the non-relocating parent, the court SHALL sanction the relocating parent. To be clear, the court is required by the statute to sanction the relocating parent if proper notice is not given. 

The written notice must be provided to the non-relocating parent by certified mail, return receipt requested. 

Alternatively, the relocating parent may file a petition with the court requesting a hearing about the relocation. The notice timeline still applies, and the petition must be served on the non-relocating parent just like any other petition.

The Non-Relocating Parent’s Rights

After the non-relocating parent is provided notice, the non-relocating parent has 30 days to petition the court to prevent location. If the non-relocating parent fails to file a petition to prevent relocation within 30 days, they can still file a petition, but the court will only grant the petition “on a showing of good cause” at that point. 

Factors Considered by Arizona Courts

From a legal standpoint, the court is looking at the same factors for relocation that the court looks at for the initial custody and parenting time determination: The child’s bests interests, set forth in ARS 28-403.

The Best Interests Factors

1. The past, present and potential future relationship between the parent and the child.
2. 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.
3. The child’s adjustment to home, school and community.
4. If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time.
5. The mental and physical health of all individuals involved.
6. Which parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent.  This paragraph does not apply if the court determines that a parent is acting in good faith to protect the child from witnessing an act of domestic violence or being a victim of domestic violence or child abuse.
7. Whether one parent intentionally misled the court to cause an unnecessary delay, to increase the cost of litigation or to persuade the court to give a legal decision-making or a parenting time preference to that parent.
8. Whether there has been domestic violence or child abuse pursuant to section 25-403.03.
9. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time.
10. Whether a parent has complied with chapter 3, article 5 of this title.
11. Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02.

Further, the court is going to consider additional best interests factors related specifically to the relocation.

Relocation-Specific Best Interests Factors

1. 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.
2. The prospective advantage of the move for improving the general quality of life for the custodial parent or for the child.
3. The likelihood that the parent with whom the child will reside after the relocation will comply with parenting time orders.
4. Whether the relocation will allow a realistic opportunity for parenting time with each parent.
5. The extent to which moving or not moving will affect the emotional, physical or developmental needs of the child.
6. 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.
7. The potential effect of relocation on the child’s stability.

Potential Outcomes

With respect to relocation, the outcome is binary – either the court will allow the relocation, or it won’t. The resulting parenting plan could take many forms though.

If the parties were exercising essentially equal parenting time prior to the relocation, the relocating parent may be getting a lot less parenting time. Maybe the relocating parent will get time over the major holidays and summer.

If the relocating parent was the primary residential parent (had the majority of parenting time), then the non-relocating parent may end up with a block of parenting time in the summer and over breaks from school.

Preparing for a Relocation Request

If you are going to litigate a relocation request in court, that may be a good time to consult an attorney. There are a lot of variables and coming up with and executing on a plan will serve you well. 

In a nutshell though, you want to be lining up your move well in advance. A relocating parent has an uphill battle. Of course the court is looking at all of the best interests factors, but the two main issues are these: The relocating parent needs to convince the court that the move is going to benefit the child, and that the non-relocating parent is still going to have meaningful parenting time with the child. 

As you are preparing to present your case, you want to be looking for ways to show that the relocation will be a great opportunity for the child, and also that you consistently make an effort to facilitate parenting time with the non-relocating parent.

Alternatives to Litigation

Direct negotiation

If you have a good relationship with the non-relocating parent, you may be able to negotiation your relocation. If both parents can agree on a new schedule, then great. Get it down in writing and you’re good to go.

Relocating parent provided notice, non-relocating parent didn’t challenge

If you provided notice of your intent to relocate to the non-relocating parent at least 45 days before your move, and the non-relocating parent never challenged it, then you’re good go move. You may still need to modify the parenting plan officially at some point down the road, but at least you can legally relocate with your child.

Mediation

This can be a great option. It can be far less stressful than a court battle, not to mention less expensive. Another benefit of mediation is that you can hire a family law attorney or maybe even a retired judge to mediate your case. Either of these options will put you in front of a mediator who has experience with how a case might go in court. The mediator can be a voice of reason when one party is taking an unreasonable position.

Impact on Child Support

If the relocation results in a new parenting time order, there will also be a change to child support. As part of planning for the relocation, it would be a good idea to run some child support calculations to get a feel for how a new parenting plan migh affect child support. Child support can sometimes be a negotiating point to.

Conclusion

Odds are relocating is an important and significant life event that you want to go as smoothly as possible. Even if you don’t plan on hiring an attorney to help you through the process, it could be worthwhile to at least meet with an attorney for an hour, talk through the process, discuss any potential roadblocks, and put together a rough plan. This is especially true if you have a contentious relationship with the non-relocating parent.

Take an honest and objective look at the relocation. Is it really in the best interests of your child? Here again, it could be worthwhile to talk to someone else and get their perspective. Sometimes it can be difficult for us to view our own situations objectively because we are so close to it. A third party can sometimes offer valuable insight that we might otherwise miss.