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Petition to Modify Support and Sole Custody in AZ | Hildebrand Law, PC

Posted on : January 11, 2018, By:  Chris Hildebrand
Filing a Petition to Modify Child Support and Sole Legal Decision-Making.

Filing a Petition to Modify Child Support and Sole Custody in Arizona

The petitioner, in this case, is Ms.Sundstrom (“Mother”) who appealed a Superior Court decision awarding Mr.Flatt (“Father”) sole legal decision-making concerning their two minor children.

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.

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. The temporary orders are put in place by the court, to ensure the safety and well-being of the children, while the permanent orders are moving through the court system.

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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.

There are ways around this time constraint when it comes to the safety and health of the child or children. A parent’s absence due to a military deployment is another case where the court will hear motions for modification in an expeditious manner.

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.

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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.


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.

Petition to Modify Support and Sole Custody in Arizona.

Mother had not filed a notice of dismissal in accordance with Rule 46(A). This rule leaves it up to the court’s discretion as to whether the original petition should be dismissed. Mother originally filed a petition that complied with Rule 91(D). It was not necessary for Father to file his own petition and the court has jurisdiction pursuant to A.R.S. §12-2101 (A)(1), having to do with judgments that may be appealed.

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.

Call us today at (480)305-8300 or reach out to us through our appointment scheduling form to schedule your personalized consultation and turn your Arizona child support or family law case around today.

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