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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

Change in Circumstances and Changing Child Custody.

Change in Circumstances and Changing Child Custody.

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 In the unpublished decision in the Nicholas v. Nicholas case, The Arizona Court of Appeals considered whether the Family Court’s findings that the relocation and modification of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 were in the best interests of the children. 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.

Jennifer, thank you for being my attorney. I could not have been more pleased with the outcome of my family court hearing. Everything you have done for me throughout this case reflects in the final ruling of the judge. You helped me keep my head together and taught me a lot about myself as a person. I learned so much about my life from observing and listening to you. I will take all the advice you gave me to continue taking responsibility for my choices, continue to put the kids' needs first, and always stay truthful. Your diligence, dedication, and persistence in my case made what seemed impossible, possible. You are a wonderful person and an amazing attorney and I am stronger and more confident because of you.
A Google User
A Google User
20:31 20 Sep 17
I just want to again thank the Firm for working with me all that it has. I could not have done anything without everyone's assistance. You, Chris and Stacey have been and continue to provide me with compassion and hard work towards my case. Also a very special thanks to Kip for taking my case in the beginning. Also continued support from him and his dedication to providing me with his expertise in this matter.
A Google User
A Google User
21:41 07 Nov 17
After interviewing several law firms, I came across Jennifer Shick, and her firm, who I hired to represent me for my Family Court case. Jennifer has extensive knowledge of the law and is determined to bring the truth to every issue involved within the case. Throughout my case, Jennifer was prepared meticulously as well as went above and beyond all of my expectations. Even when the other party tried to differ from the truth, lie to the Judge, and turn situations around, Jennifer remained attentive and provided substantial evidence to show the judge the facts as well as the proof to support what was the best interests of my children. Additionally, Jennifer helped me endure many difficult experiences, situations and inspired me to remain positive throughout the entirety of my case. Her kindness, compassion, and professionalism helped me through very difficult times and made the process feel a thousand times lighter on my shoulders. She truly has my children and my best interest at heart and I trust her perspective as well as her honesty on each and every aspect of my case. She lessened the burden on my shoulders and even when I felt like the case was not going to go in my favor, Jennifer was open-minded and reassured me that the Judge would, in fact, see the truth, which he did and the case went in my favor. After nine months of court, everything finally came together. I cannot declare how much Jennifer has been an outstanding attorney. She addressed each and every issue with diligence, she cares about her clients and their families. Jennifer genuinely cares about her clients and her dedication to the details of the case was remarkable. Overall, I am extremely pleased with Jennifer’s services and I am truly thankful that I was so blessed to have her represent my children and me. I highly recommend Jennifer as one of the best attorneys in Arizona and if the situation ever arises, I will definitely have her represent my children and me again.
Google User
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14:58 04 Oct 17
Dear Stacey and Kip, How can I ever thank you enough for helping me through the most difficult time in my life? I couldn't put into words my heartfelt gratefulness. You both were so compassionate and professional at every given moment throughout this process with me. I thank you from the bottom of my heart. You helped me to regain my freedom.
A Google User
A Google User
16:03 22 Nov 17
I was a client of Attorney Kevin Park for the dissolution of a divorce in 2016. And since I had never had the need to hire an attorney before for any purpose, I was somewhat apprehensive of the process. But the very calm and professional demeanor of Mr. Park eased my fears. He adeptly answered all my questions and I clearly knew the process and what to expect. And the skilled manner he communicated with opposing counsel was perfect. When it came down to negotiating with my spouse’s counsel, I knew I had selected the best attorney for my situation. What I noticed and appreciated was that he was using just the right amount of pressure with opposing counsel as was necessary. If you find yourself in this situation, you will want a seasoned professional like Mr. Park on your side. I'm very grateful that he was my attorney and not the opposition!
A Google User
A Google User
22:14 28 Jun 17
Chris is a smart and aggressive attorney for his clients. Chris always tries to reach a fair settlement of his cases. I’ve represented clients when Chris was the opposing counsel and while he is professional and amicable to work with, he does not back off on what he needs to do for his client
A Google User
A Google User
18:16 18 Sep 17
Kevin Park of Arizona Estate Planning Attorneys was just what I needed for my divorce. He was very approachable and personable. He was quick to recognize what I needed and provided it quickly and efficiently. I hope to never need a divorce lawyer again, but if I know anyone else who does, I will definitely recommend Kevin.
A Google User
A Google User
19:22 23 Aug 17
I feel that Tracey Van Wickler is certainly one of the best family lawyers around. She is logical, intelligent, and truly cares. Tracey always does what is in the clients best interest, does it well, timely and with integrity. She is good at keeping her clients informed as to what is going on and clear in her communication both written and verbally. I have recommended Tracey to other people and will continue to recommend her. I recommended Tracey to someone who was having issues with their ex-wife and his response was, “I know how good she is because I went up against her and she ate me for lunch”. This same person was so impressed with her, he even recommended her to someone else, WOW, that is impressive! I am exceptionally happy with her attention to detail, her ability to explain things in ways that are easy to understand, as well as her ability to keep everyone focused on the most important things. I would recommend Tracey to anyone who may be in need of her services.
A Google User
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17:44 23 Jun 16
I retained Hildebrand Law after interview a number of firms in the valley. Working with Michael C. was incredibly easy and informative. My case progressed in such a organized and thought out way to ensure that my needs were met. Michael was incredibly proactive and was able to see far ahead into my case to steer clear of some roadblocks. I would not hesitate to recommend Michael Clancy, and Hildebrand Law in general, to anyone.
Bassam Ziadeh
Bassam Ziadeh
21:20 02 Apr 18
I have worked with Hildebrand law for about 8 years. They are always ready to serve, provide guidance and give you a few options. When they provide you options they also take the time to walk you through the pros and cons of each and give you a recommendation of what is best, but will listen to you and support whatever course you choose after making and educated choice. I’d recommend them to my closest friends and feel Chris Hildebrand is now a friend to me.
Larry Flint
Larry Flint
21:53 27 Feb 18
Despite the unfortunate situation I found myself in, Chris Hildebrand @ Hildebrand Law helped me maneuver every step with professionalism, expertise, and even a sensitivity that was an added bonus.Chris and his staff helped me even when I didn't know I needed the help. In other words. . . they made sure we did not leave anything undone. And in the rare instance we needed the expertise of another professional, Chris knew exactly who to recommend.Chris also knew, because of his experience, what to anticipate down the road of litigation. That meant we were better prepared to meet the challenges head on, which lead to a more equitable and fair outcome. I appreciated that Chris did his best to meet my every need in a timely fashion, even if I had a simple question that required only a phone call or e-mail or if we needed to talk face-to-face.I highly recommend Chris Hildebrand @ Hildebrand Law, PC.
Sam Franchimone
Sam Franchimone
22:09 12 Sep 13

Establishing a Change in Circumstances

Establishing Change in Circumstances.

Establishing Change in Circumstances.

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 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.

Child Relocation and Change in Circumstances to Modify Child Custody

Relocation and Change in Circumstances.

Relocation and Change in Circumstances.

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 step-siblings.

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 in this matter is evident in the Mother’s marriage, the children’s adjustment to their school, and their strengthened relationships with their step-family.

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.

Call (480)305-8300 to schedule your personalized consultation with one of our experienced Phoenix and Scottsdale Arizona divorce attorneys.



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