Relocation of a Child in Arizona

We want to address the child custody laws that apply to a parent who wants to relocate with their child in Arizona to another state or more than one hundred miles from their current residence over the other parent’s objections. A parent is permitted to move without court permission, so long as that move is not more than one hundred miles from their current residence. However, Arizona Revised Statute Section 25-408 requires a parent to obtain the permission of the other parent or a court order if he or she wishes to relocate more than one hundred miles from their current residence.

An interesting Arizona Court of Appeals decision recently dealt with multiple moves, each of which were less than one hundred miles, but accumulatively was much more than one hundred miles. Can a parent avoid the one hundred mile restrictions of the statute simply by making multiple ninety nine miles moves and, essentially, hopscotch a child away from the other parent through multiple moves?

The Arizona Court of Appeals issued a decision regarding the relocation of children by a parent and how the Arizona statute designating one hundred miles as a limit for relocation should be calculated in the case Michelle Vincent v. Jeffrey Nelson.

Relocation of a child in Arizona from Chris Hildebrand on Vimeo.

In 2008, Vincent filed for dissolution of marriage. During a resolution management conference in 2009, Vincent informed the court she intended to move to either Payson or Heber. At the time, both parties resided in Phoenix and temporary orders were in place for custody and parental visitation.

The court informed Vincent that, according to Arizona statutes, she could not move the children more than one hundred miles from her current address without Nelson’s agreement or the court’s approval. After Vincent discovered Payson was within the one hundred mile limit and Heber was not, she informed the court she would be moving to Payson. The court encouraged the parties to reach an agreement on the issue, but if they could not, the court indicated it would make the decision.

At the dissolution trial, the parties informed the court they had not reached an agreement. Vincent added that she still intended to move to Payson, where she had already acquired a job and an apartment.


Relocation of Child in Arizona | The Court’s Ruling

The court concluded the children’s quality of life would improve by moving to Payson for reasons, including the fact Vincent had extended family there, she had the opportunity to earn more money, and the rent was lower. In the final decree, the family court awarded joint legal decision-making to the parties and designated Vincent as the primary physical custodian. The decree did not address her relocation.

From 2009 to 2013, Vincent moved several times. At the end of 2009, the venue for the case was changed from Maricopa County to Gila County. In 2012, she moved to Lakeside and petitioned the court to change the venue from Gila County to Navajo County. Nelson, who still resided in Maricopa County, objected and petitioned the court to transfer the venue back to Maricopa County, which the court granted.

In 2013, Nelson filed a petition for modification. A few days before the hearing, Nelson filed an amended pretrial statement in which he argued that the statutory distance limit should be invoked to disallow Vincent’s move to Lakeside.

The court ruled that her relocation to Payson in 2009 was authorized by the court in an oral pronouncement and regarding her move to Lakeside, the provisions of the statute were inapplicable because Lakeside is less than 100 miles from Payson.

The court also found that Nelson failed to demonstrate a material change in circumstances affecting the children’s welfare. Additionally, the court granted Vincent attorney fees, finding Nelson unreasonable in raising the relocation challenge just a few days before the hearing. Finally, the court ordered the venue transferred to Navajo County.

Nelson appealed the trial court’s decision to the Arizona Court of Appeals. He argued the statute was applicable to the situation, contending that the trial court should have measured the mileage from Phoenix, which was where Vincent resided when the 2009 decree was issued. The court examined a similar case, Thompson, to help make their decision.

In Thompson, the mother lived in Alpine and informed the court that she wanted to move with the children to Show Low. The court approved her relocation in a temporary order that also established custody and visitation. Before the final decree was issued, the mother moved to Show Low.

After the court entered the final decree, the mother notified the court she intended to relocate to Payson. The father objected, arguing that the mileage limitation statute required the court to calculate the mileage of the mother’s relocation by adding the miles of her first and second move, which would exceed the 100 mile limit.

The court of appeals held in that case that the statute did not apply because the court had approved her original move and she moved within one year of that approval. When the court approved the move and rendered the 100 mile limit inapplicable, the miles of the court-authorized relocation are exempt from future calculations.

The court decided that the cases were similar, but there was a key difference between the two. In this case, Vincent’s first move was authorized by the court, but unlike the mother in Thompson she did not relocate before the issuance of the 2009 decree.

Nelson contended that the court should apply literally the Thompson court’s language that a parent granted joint custody or parenting time has the right to move up to 100 miles from the parent’s physical location with the child as of the date of the court order entitling both parents custody or parenting time. If the language was applied, the trial court’s approval of Vincent’s move would essentially be negated because she did not move until after the decree was issued.

The court concluded that because the facts were different in this case than they were in Thompson they needed to interpret the language accordingly. The distance statute provides a one-year time limit for approved relocations to be completed and Vincent’s was completed in a timely manner. Because of this, the court decided that the fact the she relocated a week after the decree was entered, rather than before, should not affect their decision.

This led them to rule that the trial court correctly determined the mileage of Vincent’s first move to be exempted from future calculations and the starting point for mileage applications would be her address in Payson. Therefore, because Lakeside is less than 100 miles from Payson, the mileage limitation statute does not apply and Nelson’s relocation challenge was rejected.

Nelson also appealed the family court’s decision that there was no material change in circumstances warranting a modification of court-ordered parenting time and legal decision making. He argued that the court did not properly consider Vincent’s alleged “divorce decree violations” and her relocation as evidence of a material change in circumstances.

The appellate court disagreed with him. The Arizona Court of Appeals added that to change a previous custody order, the family court must determine that there has been a material change in circumstances affecting the welfare of the child and they will not disturb the family court’s decision without a clear abuse of discretion.

The record indicates that both parties presented evidence regarding Nelson’s allegations and the family court found Vincent’s evidence and witnesses to be more persuasive in their testimony than Nelson’s. Although he argued that the family court did not properly consider the evidence, the appellate court believed the record reflected that all evidence and issues were carefully and comprehensively considered. They concluded that the record and the law support the family court’s ruling denying his requested changes in parenting time and legal decision-making.

This case demonstrates that when a parent going through the divorce process in Arizona decides to move more than 100 miles within the state from their current residence with their child, they must obtain an agreement with the other parent or a court order. After receiving that approval and relocating in a timely manner, any further moves will be measured from that place of their new residence rather than the original location.