Contesting Relocation of a Child When the Other Parent Does Not Live in Arizona
A parent can contest the other parent from relocating the child to another state when both parents live in Arizona. However, what happens if the parent trying to stop the relocation of their child from Arizona to another state does not live in Arizona? The Arizona Court of Appeals in the unpublished decision in the case of Whitman v. Whitman answered that question.
In the Whitman case, the mother lived in Arizona and the father lived in Ohio when the court dissolved their marriage. A short time after the parents were divorced, the mother notified the father of her intention to move their children from Arizona to Nevada. The father objected to that move even though he continued to live in Ohio and was exercising a long-distance parenting time schedule with his children.
The mother argued father did not have a basis to object to her relocating the children from Arizona to Nevada because he lived in Ohio, not Arizona. According to the mother, the father’s parenting time would be a long-distance parenting time schedule regarding whether she lived in Arizona or Nevada.
A Parent Not Living in Arizona Can Contest the Relocation of His or Her Children
At trial, the court rejected the mother’s arguments and concluded the father did have a basis to contest the relocation of his children from Arizona to Nevada even if Father was residing in Ohio and not Arizona.
The court concluded that one part of Arizona Revised Statute 25-408 has, as a prerequisite, that both parents continue to reside in Arizona. Specifically, ARS 25-408(A) provides that a parent is entitled to notice of the other parent’s intent to relocate the children more than 100 miles from their current residence.
The mother concluded that she, therefore, could move with the children because the father did not live in Arizona. However, the Arizona Court of Appeals concluded that only applied to the mother providing the notice of her intention to relocate and did not control whether the court had the authority to prevent the relocation itself.
Instead, the Arizona Court of Appeals looked at a different part of ARS 25-408; specifically, it looked at the language in ARS 25-408(c) that, without restriction, allows “a parent who is seeking to relocate the child [to petition] the court for a hearing, on notice to the other parent, to determine the appropriateness of a relocation that may adversely affect the other parent’s legal decision-making or parenting time rights.”
Relocating Children Affects Parenting Time
The mother then tried to argue the case was not really a relocation case but, instead, a long-distance parenting time issue. The mother argued the father was exercising a long-distance parenting time schedule whether she lived in Arizona or Nevada. She then argued, as a result, the child relocation statute should not have been considered by the court.
The Arizona Court of Appeals responded to the mother’s argument by concluding a trial court is always obliged to consider the best interests of a child whenever a parent wants to move a child from Arizona to another state. The court of appeals also pointed out the fact that the mother agreed the court was required to consider the child relocation factors in the statute in her pretrial statement to the court.
Lastly, the mother argued the court should not have considered the father’s objection to her relocating the children from Arizona to Nevada. She relied on Arizona Revised Statute Section 25-411(A) that prevents either parent, except in case of an emergency, from filing to anything seeking to modify a child custody order within one year of the issuance of the last child custody order.
The Arizona Court of Appeals noted the mother failed to raise that issue in her initial appellate brief. However, it did state that even if she had raised that issue on this appeal the same statute would prevent the mother from filing a request to relocate with the children less than one year after the last child custody order was entered.
The Arizona Court of Appeals concluded that filing a request to relocate the children less than a year after the last child custody order was entered is “in the nature of a motion to modify visitation” less than a year before the last custody order was entered; which is not permitted by statute.
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Chris Hildebrand wrote the information on this page about contesting relocation of a child to ensure everyone has access to information about child custody laws in Arizona. Chris is a divorce and child custody attorney at Hildebrand Law, PC. He has over 24 years of Arizona family law experience and has received multiple awards, including US News and World Report “Top Arizona Divorce Attorneys”, Phoenix Magazine “Top Divorce Law Firms”, and Arizona Foothills Magazine “Best of the Valley” award. He believes the policies and procedures he uses to get his clients through a divorce should all be guided by the principles of honesty, integrity, and actually caring about what his clients are going through in a child custody case.