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Father Awarded Custody on Mother’s Motion to Modify in Arizona

Thu 11th Jan, 2018 Arizona Child Support Laws

If you have ever wondered if a judge can give the other parent sole custody when you are the one that filed a Petition to Modify child custody orders, the answer is yes, which is what happened in this Arizona case.

Mother and Father dissolved their marriage in 2008 by a consent decree that awarded Ms.Sundstrom sole legal decision-making of their two minor children who were five and two years old. It was decided that the parents would share equal parenting time.

Mother Files a Petition to Modify Child Custody Orders

After six years of both parents adhering to the original court order, Mother filed a petition in 2014 to modify the order. Mother wanted to retain sole legal decision-making of the children, but she also wanted to modify child support and either reduce Father’s parenting time or require that it be supervised.

In response to Mother’s petition, in November 2015, Father moved for temporary orders requesting sole legal decision-making. The court conducted protracted temporary order proceedings (meaning the court conducted a drawn-out or extended time for the temporary orders) and then set a final hearing on Mother’s petition.

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Only One Parent Needs to File a Petition to Modify to Allow the Court to Give Child Custody to Either Parernt

In preparation for the final hearing on Mother’s petition, Father filed a pretrial statement requesting sole legal decision-making.

Mother objected to Father being able to file this pretrial statement because he had not filed a petition to modify legal decision-making, in compliance with Arizona Rule of Family Law Procedure 91 or in accordance with A.R.S. §25-411. Rule 91 is used for post-decree or post-judgment proceedings.

In short, the rule reads that “a party seeking to modify or enforce a prior family court order shall file a petition with the clerk of the court setting forth with specificity all relief requested, and pay the required filing fee”.

It is also required that the parent seeking to modify orders must provide notice to the other parties in the proceeding. A.R.S. § 25-411 addresses modification of an order as long as the motion is not made earlier than one year from the date of the original motion.

Father Awarded Custody on Mother's Motion to Modify in Arizona.

Mother argues that her petition to modify legal decision-making complied with both § 25-411 and Rule 91, but states that because Father did not file “his own” petition, the Superior Court should not recognize his request.

Since the court did recognize Father’s pretrial statement requesting sole legal decision-making of the two children, Mother moved to withdraw her original petition to modify.

Mother’s first argument states that she filed a petition in compliance with the law, but Father did not.

Father did not file his own petition because it was not necessary for him to do so. Section 25-411 (L) requires “a person,” and Rule 91 (D)(1) requires “any party,” to file a petition to modify legal decision-making.

Since it would be redundant for both parties to file, the court only requires one person to file, which allows the court to grant either party legal decision-making. This means that the party who originally petitioned the court must be prepared for the court to grant legal decision-making to the opposing party.

Mother correctly followed the law in filing her petition and since Father also followed the law by giving her adequate notice of his request for sole decision-making, Mother had no argument against the court. Mother also argued that by allowing Father to amend his prior “pleadings” under Rule 34, the Superior Court erred. Rule 34 involves the manner in which documents are produced whether electronically, stored etc.

In this matter, since the Superior Court had the authority to modify legal decision-making based on Mother’s petition, the amendment of Father’s previous pleading was not necessary.

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The Court Grants Father Sole Custody on Mother’s Petition to Modify

At the final evidentiary hearing, the court awarded Father sole legal decision-making of the two minor children. Mother did attempt to withdraw her original petition to modify, in order to try to maintain her status of the sole legal decision-maker, but the court denied her request.

If you have questions about a petition to modify support and sole custody in an Arizona divorce case, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona child support and family law attorneys have over 100 years of combined experience successfully representing clients in child support and family law cases.

Our family law firm has earned numerous awards such as US News and World Reports Best Arizona Family Law Firm, US News and World Report Best Divorce Attorneys, “Best of the Valley” by Arizona Foothills readers, and “Best Arizona Divorce Law Firms” by North Scottsdale Magazine.

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