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Change in Circumstances Custody Modification in AZ | Hildebrand Law

Posted on : November 5, 2018, By:  Christopher Hildebrand
Hildebrand Law, PC

Can A Judge Consider Prior Change in Circumstances for Custody Modification in Arizona

Can A Judge Consider Prior Circumstance When Modifying Child Custody in Arizona?

Can A Judge Consider Prior Circumstance When Modifying Child Custody in Arizona?

In Arizona, a parent must show a substantial and continuing change in circumstances has occurred that justifies a trial to determine if a change in custody of a child should be ordered. This means that a parent must file a petition to modify child custody and that petition must include new allegations of specific facts demonstrating that sufficient changes have occurred since the last child custody order was entered before a trial can be scheduled.

If a parent fails to demonstrate a sufficient change has occurred since the last child custody order was entered, the petition for modification of child custody is denied and the trial is not scheduled. It is important to note that the alleged changes cannot be based only allegations of events that occurred before the last child custody order was entered.

The question becomes whether a judge can consider allegations of events that occurred before the last child custody order was entered if a parent establishes that a change in circumstances has occurred after the last child custody order was entered.

Prior Allegations in a New Petition to Modify Custody

Prior Allegations in a New Petition to Modify Custody.

Prior Allegations in a New Petition to Modify Custody.

The Arizona Supreme Court answered that question in the case of Pridgeon vs. Superior Court. In the Pridgeon case, the father filed a petition to modify custody of the parties’ child. In his petition to modify, the father included allegations that predated the prior child custody orders.

The mother argued the father could not include any allegations in his petition for modification of custody that predated the issuance of the last custody order. The Arizona Supreme Court cited decisions reached in the case of Bailey vs. Bailey in which the Arizona Supreme Court ruled that “a custody order is final on the facts that were before the court when its decision was made.”

However, it held that once a given set of circumstances has been presented to the court in a child custody proceeding, those same circumstances may not be alleged again to modify a child custody order. However, it also ruled that once additional changes in circumstances are alleged concerning new circumstances that occurred after the last child support order was entered justifying a potential modification of a child custody order, those prior circumstances may then be alleged as additional support for a petition to modify child custody.

The Supreme Court stated a judge cannot be held to make a decision in a child custody modification case in a vacuum. It recognized that the significance of events that occurred after the child custody order was last issued may, in some cases, only be understood in the context of understanding events that occurred before the last child custody order was entered.

The court went on to say that decisions on the admissibility of evidence must not be made based upon whether it relates to events that occurred before the last child custody order was entered but, instead, by its relevance to circumstances that occurred after the last child custody order was entered.

A judge, therefore, can consider both new allegations as well as allegations that were either previously alleged or concern circumstances already considered by the court in a prior child custody hearing if a parent first establishes at least one substantial and continuing change in circumstances since the last child custody order was issued when determining if a parent has established adequate cause to hold a modification of child custody hearing.

On a related note, the Arizona Supreme Court also ruled that a petition to modify custody of a child must state specific facts and cannot simply be conclusory statements. Furthermore, the Supreme Court indicated a court is required to schedule a trial if the other parent files a contravening affidavit disputing the facts alleged in the other parent’s affidavit of changed circumstances because a trial court cannot conduct a “trial by affidavit” by judging the credibility of the statements in the competing affidavits.

Call the experienced Scottsdale and Phoenix Arizona child custody attorneys at (480)305-8300 at Hildebrand Law, PC to learn more about adopting a child in Arizona.

Chris Hildebrand

Chris Hildebrand

Chris Hildebrand wrote this article about modification of child custody in Arizona to ensure everyone has access to information about child custody laws in Arizona. Chris is a family law 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 child custody case should all be guided by the principles of honesty, integrity, and actually caring about what his clients are going through.

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