Tuesday, February 5, 2013

Moving Out of State with the Children

More and more it comes up that people are needing to move out of Arizona because they have received a job offer in another state.  Normally this is good news but when children of divorce are concerned it can be a problem for the parents that have custody.  If the other parent is not in agreement with the move you could be looking at a long court battle.  If you are the other parent then the good news is that the law has been changed to shore up your rights.

There has been some recent changes in the law that protect the rights of parents that do not have custody.  The changes can be found in Ariz.Rev.Stat. 25-408, Rights of Each Parent...

There is a presumption in the law that states that if both parents have joint legal decision making or unsupervised visitation then they are entitled to advanced written notification from the other parent if they plan to move with the children.  Now a lot of people miss the second part of this, "unsupervised visitation"  Some parents think that if they have sole custody (sole legal decision making) that they can just pack up the kids and move.  Nothing could be further from the truth.  Unless there is an order for "supervised visitation"  you can not move without the children unless you give advanced written notice AND you have permission from the court to relocate.  To do fail to do so will cause court sanctions to include loss of custody (Ariz.Rev.Stat. 25-415(B)(3))

Advanced Written Notice

First of all the parent that is planning to move with the children must give the other parent at least 60 day advance written notice if they are planning to move outside of Arizona or more than 100 miles within the state (there is a committee in the legislature as of the writing of this post that is actively seeking to change this law to more than 15 miles within the state).  This written notice must be sent certified mail, return receipt request.  For those of you not familiar with certified mail, return receipt request, this means that you must sign for a certified letter and your signature is then returned to the sender as proof that you received the letter.

After the non-custodial parent signs for the letter he or she only has 30 days to petition the court to prevent the relocation of the children.  After the expiration of the 30 days the only way you can prevent relocation is by showing "good cause".  If you get served or receive notice of the other parent's intent to relocate with the children you must act right away if you wish to prevent this.  A delay can prove disastrous if you wish to prevent the move.

Going to Court

When you get to court the court will determine what is in the "best interest" of the children.  In determining the best interest the court will consider all relevant factors.  They will look at all factors under Ariz.Rev.Stat. 25-403 plus others.

One of the others that I found in favor of the parent seeking to prevent relocation is Ariz.Rev.Stat. 25-408(H)(2), "... 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.  It would appear to me that the state legislator wants the "Other Parent"  rights to see their children protected.  That they understand that the non-custodial parent has a lot to offer and that the children are not to be removed from the state unless the custodial parent can meet the "burden of proof" as to why it is in the best interest of the children to be relocated.  And the burden of proof is on the moving parent according to Ariz.Rev.Stat. 25-408(F)( "... The burden of proving what is in the child's best interests is on the parent who is seeking to relocate the child. ...").

As one can start to see the moving parent has many hurtles to over come.  One of the more interesting one is the provision that is in most if not all Parenting Plan or Divorce Decree that prohibits the children from being removed from the state;

Ariz.Rev.Stat. 25-408(G), "The court shall not deviate from a provision of any parenting plan or other written agreement by which the parents specifically have agreed to allow or prohibit relocation of the child unless the court finds that the provision is no longer in the child's best interests. There is a rebuttal presumption that a provision from any parenting plan or other written agreement is in the child's best interests." The relocating parent must rebut the legal presumption that the parties' prohibition on relocation is in the child's best interests.

One of the ways that the moving parent could rebut this presumption is by demonstrating to the court that the move is in the best interest of the children because the advantage of the move would improve the general quality of life for the children.    Another way is show that the move will not affect the emotional, physical or developmental needs of the children in a negative way.  However, this last way is a double edged sword because the other parent could argue that it would negatively affect the children.  The other parent could even take it one step further and show the potential effect of the relocation on the children's stability.

Expected Time Line

As you can see there is no silver bullet when it comes to winning.  It is difficult to relocate with the children if the non-custodial parent is not in agreement with the move.   If you are planning on relocating and the other party is not in agreement plan at least 6 months to a year in advance of your move.  You will need at least this much time to fight the court battle that is ahead of you.  I have seen many cases like this and sometimes it makes me think that the court purposely drags these cases out in order to cause one of the parents to cave in and give the other parent their way.  I am sure this not the court's intent but it makes a person wonder sometimes.  No other cases in my experience take as long as relocation matters.

If you are the other parent and you get served notification of relocation then act immediately without delay or you may find yourself without any recourse in stopping the relocation.


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As always you should seek legal advice for specific issues like the one above before coming to Discount Divorce to have your documents done and processed so that your legal rights may be protected.


Louis Perkins said...

Thanks for sharing this. Family law can be scary and burdensome at times but taking care of your basic communication needs like this is really all it takes. - Sierra Vista

Muhammad Shoaib said...

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