Relocation in Separation and Divorce
Separation or divorce brings about enormous changes in the lives of parents and children. People going through these life changes often feel like they want to move away so that they can start a new life. Although there may be very good reasons for doing so, parents should be aware of the limitations a Court-ordered parenting plan may impose on their ability to relocate.
Before any Court order is in place, parents should be aware of the danger of relocating without the consent of the other parent. If a parent absconds with a child without justification, he or she could potentially invite criminal charges and may cause a judge to impose sanctions that could adversely affect parenting time for weeks, months, or years. Obviously, if the health, safety, and welfare of the parent or child is in danger, there are remedies available to ensure protection.
When a Court-ordered parenting plan is in place, the provisions of Ariz. Rev. Stat. § 25-408 govern a parent’s ability to move more than 100 miles with the child. The parent wanting to relocate must provide written notice to the other parent and must either serve the notice by process server or by certified mail, return receipt requested. The parent receiving notice then has 30 days in which to file a petition with the Court opposing the relocation request. If the parent receiving notice files his or her petition after 30 days, the burden of proof shifts dramatically. Filing before the 30-day deadline is critical.
Parties should keep in mind that even if the non-moving party does not oppose the request to relocate, the existing parenting time order remains in force until modified by the Court. So, if the parenting plan provides for a week on/week off schedule, that schedule remains in force even if one parent has moved hundreds of miles away with the child.
Parties should almost always involve the Court in any decision to relocate. The Court will typically set an evidentiary hearing at which each parent can present evidence of why the move is or is not in the child’s best interest. The parent seeking relocation bears the burden of proving, by a preponderance of the evidence, that the move is in the child’s best interest.
In determining whether the child’s best interest, the Court must consider the following factors, set forth in Ariz. Rev. Stat. § 25-408:
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.
These are complicated cases involving the sometimes-competing interests of parents and children. If you are facing a relocation issue as either the moving, or non-moving, parent, please contact the Moon Law Firm, PLC to set up a free consultation.