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Failing to Allege Change in Circumstances Insufficient to Overturn Modification of Child Custody Order

Posted on : February 29, 2016, By:  Christopher Hildebrand
Appeal Change in Cirumstances in Arizona

Failing to Allege Change in Circumstances Insufficient to Overturn Modification of Child Custody Order

Arizona state law is clear regarding the various issues connected to parenting time, legal decision making and relocation. Yet in some cases, the application of the law may seem far less clear than the actual law itself. In the unpublished decision in the Nicholas v. Nicholas case, The Arizona Court of Appeals considered whether the Family Court’s findings that the relocation and modification of parenting time was in the best interests of the children.

A Brief History of the Case: Nicholas v. Nicholas

The parties’ divorce decree was entered in June of 2013 awarding both parties joint legal decision making authority over their children. The order also stated that the children were to remain in California with the mother until approximately July 1, 2014 when the father retired from the military at which point he planned to relocate to Arizona. The order indicated that the children were ordered to return to Arizona upon the father’s retirement. Less than a year later, Mother filed a petition requesting that the Court set aside the order arguing the court lacked the authority to issue such an order.

In the same petition, Mother requested to be permitted to relocate to California with the children where they were already (and had been) living. She requested the change due to an alleged substantial and continuing change in circumstances. The Court granted Mother’s request and issued a long-distance parenting plan order designating the mother as the primary residential parent of the children and establishing a visitation schedule for the father. The father appealed the Court’s decision.

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Modification of Legal Decision Making and Parenting Time Appeal

On appeal, the father argued the trial court erred in its decision because the court allegedly lacked subject matter jurisdiction to issue the orders and claimed the evidence was insufficient to sustain the orders. The father’s first argument pertaining to an alleged lack of subject matter jurisdiction was based on the fact that the mother’s petition to change the order was filed less than a year after the receipt of the original decree. Section 25-411(A) allows the court to consider a petition for modification before a year has passed if there are allegations a child is in danger of serious harm, but no such allegations were made in this case. Citing State v. Maldonado, A.R.S Section 25-311(A) and A.R.S. Section 25-402(A), the Arizona Court of Appeals found that, contrary to the father’s assertion, A.R.S. Section 25-411(A) the requirements of that statute are procedural, not jurisdictional.

The father also argued on appeal that there was insufficient evidence to support the Court’s ruling; specifically, he argued the Petition for Modification did not state enough facts to allow the Court to set a hearing on the requested relocation. He further argued the only “significant and continuing change” as noted in the Petition was that the mother was remarried Change in Child Custody in Arizona and living with her husband in California with the children. Th Arizona Court of Appeals concluded the Father’s claim of a prehearing procedural error in the trial court’s application of A.R.S. Section 25-411 may not be reviewed on appeal after the Superior Court has conducted a hearing and reached a decision. In other words, it is too late to obtain appellate review of alleged noncompliance with prehearing procedures.

The father also argued there was insufficient evidence presented for the trial court to grant Mother’s petition. The Arizona Court of Appeals reviewed the case in terms of an alleged abuse of discretion. On review, the Arizona Court of Appeals found that the Superior Court based its decision on the current living arrangements of both the mother and the father, the strength of relationships with the minor children (between both parents, stepfather, step-siblings, as well as child of the mother and stepfather), stability for the children (they had been living in California for 2 years), and that the father’s request that they relocate to Arizona would mean either “returning” to an area where they had never lived before or relocating back to a previous home in Arizona that is 100 miles from Father).  In addition, Father provided no clear answers regarding the details of childcare or schooling if the children were relocated to Arizona.

Relocation of the children to Arizona as per the original divorce decree seemed, at that point, illogical to the Court of Appeals. The father cites that the mother’s original move with the children from Arizona to California while he was still in military service occurred with her discussing the move with him. The Court of Appeals Court agreed the mother’s unilateral decision to move to California with discussing it with the father was inappropriate, but concluded that fact did not change any of the current details pertaining to the children’s current situation.

The children were clearly established in their community in California and were thriving in school along with their participation in extra curricular activities and their stepsiblings. The father did return to Arizona, as agreed in the original decree, but he did not return within 100 miles of the former residence of the children in Maricopa County. The Arizona Court of Appeals found that, at this time, it is far more appropriate for the children to be allowed to “relocate” or, in other words, remain in California where they are already established and that the “change or circumstance” necessary for the Court to exercise its discretion on this matter is evident in the Mother’s marriage, the children’s adjustment to their school, and their strengthened relationships with their step-family.

The Arizona Court of Appeals Finds that the Superior Court Did Not Err

After reviewing the issues on appeal, the Arizona Court of Appeals found that the Superior Court did not err in modifying the parenting time order. Findings do indicate sufficient changed circumstances and that the revised order is in the best interests of the children. Therefore, the father’s request to vacate the Superior Court’s order was denied.


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2 responses to “Failing to Allege Change in Circumstances Insufficient to Overturn Modification of Child Custody Order”

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