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In Arizona, a parent must show a substantial and continuing change in circumstances has occurred that justifies a trial judge to determine if a change in custody of a child should be ordered.
This means 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 of circumstances has occurred since the last child custody order was entered, the petition for modification of child custody is denied and a child custody trial is not scheduled.
It is important to note that the alleged change of circumstances cannot be based only upon allegations of events that occurred before the last child custody order was entered.
Defining What a Substantial and Continuing Change in Circumstances is to Modify Child Custody in Arizona
The Arizona Court of Appeals in the case of Backstrand vs. Backstrand provided an extensive analysis of what constitutes a substantial and continuing change in circumstances to modify a child custody order in Arizona
In that case, Mother and Father were divorced. The court adopted the parties’ agreement that the child would live with Mother. Father subsequently moved to Minnesota. Some time thereafter, Mother moved with the child to Nevada against Father’s wishes and without first asking the court for permission to relocate to Nevada.
Father filed to modify the child custody arrangements to transfer primary physical custody of the child from Mother to Father having primary physical custody of the child in the state of Minnesota. After a lengthy trial, the trial judge granted Father’s motion to modify the child custody arrangements and ordered Father to have primary physical custody of their child.
Mother appealed that decision to the Arizona Court of Appeals.
The Court of Appeals held a court may modify a child custody order if it first finds the existence of a “material change of the circumstances affecting the child’s welfare since the last court order” was entered. If such a finding is made, the trial judge must then determine whether a change in the child custody orders is in the child’s best interests taking into account the child custody factors listed in Arizona Revised Statute Section 25-403(a).
Mother, Father and Paternal Grandfather all testified at the trial of this case. Both Father and Paternal Grandfather testified, among other things, about all of the family members the child, including her half-brother, had in Minnesota. Mother testified about how the move to Nevada enhanced her career, her work schedule, her income, and the child’s relationship with her fiance; which she believed was a benefit to their daughter.
The trial court ruled that Mother’s relocation of the child to Nevada met the requirement Father had the burden of proving to establish a substantial and continuing change in circumstances had occurred before the judge could even consider whether to modify the child custody orders previously issued in the case.
After making that first requiring finding (i.e., that a substantial and continuing change in circumstances existed), the trial judge then analyzed all of the child custody factors in A.R.S. 25-403(a) and concluded, based upon those findings, that it was in the child’s best interests for Father to be the child’s primary residential parent and for the child, therefore, to move from Nevada to Minnesota. The court also awarded Mother parenting time.
In her appeal, Mother claimed the trial judge should not have found the existence of a substantial and continuing change in circumstances had occurred and, therefore, the trial court did not have the authority to modify the prior child custody orders.
The Court of Appeals disagreed with Mother.
The Arizona Two Prong Test to Determine if a Judge May Modify an Existing Child Custody Order
The Court of Appeals indicated there is a two prong test.
“First, the court must ascertain whether there has been a change in circumstances materially affecting the welfare of the child.” Only then a trial court has the legal authority to determine whether a change in a child custody order will be in the best interests of the child.
The Court of Appeals indicated the parent requesting a modification of a child custody order has the burden of proving the existence of a substantial and continuing change in circumstances to modify child custody orders in Arizona.
The trial judge, likewise, has broad discretion to decide whether a change in circumstances exists; which means an appellate court is very unlikely to overturn a trial judge’s ruling finding the existence of a substantial and continuing change in circumstances to modify a child custody order.
In this appeal, the Arizona Court of Appeals ruled the trial judge correctly found there was a substantial and continuing change in circumstances to justify a modification of the parents’ child custody order.
The Arizona Court of Appeals provided examples of other cases wherein the court found the existence of a substantial and continuing change in circumstance including the following:
- Black vs. Black: change of circumstances found when a parent has remarried;
- Ward vs. Ward: change of circumstances found based upon the age of the child, the child’s wishes, and increased distance between the child and the non-custodial parent;
- Canty vs. Canty: change of circumstances found when joint custody became logistically impossible;
A Request to Relocate a Child vs. An Actual Relocation of a Child
The Arizona Court of Appeals stated there would not have been a substantial and continuing change in circumstances for Father to file to modify the child custody orders if Mother had sought the court’s authorization to move to Nevada before she relocated with the child to Nevada.
Specifically, the Court of Appeals ruled a request to relocate a child does not constitute a change in circumstances justifying the other parent filing a motion to modify a child custody order, but an actual relocation does.
Arizona Supreme Court Ruling Required to Remove the Requirement to Prove the Existence of a Substantial and Continuing Change in Circumstances Requirement to Modify Child Custody Orders in Arizona
Interestingly, the Arizona Court of Appeals indicated the two prong test it applied was actually inconsistent with Arizona Revised Statute Section 25-411(J). The Arizona Court of Appeals indicated the Arizona Legislature did not adopt the “change in circumstances” requirement when Arizona adopted the Uniform Marriage and Divorce Act in 1970. Instead, the Arizona Legislature adopted the rule that a “court may modify an order granting or denying parenting time rights whenever modification would serve the best interest of the child.”
In explaining why the Arizona Court of Appeals is still requiring a finding of the existence of a substantial and continuing change in circumstances as part of the two prong test in Arizona despite the fact that A.R.S. 25-411(J) does not require such a finding, the Court of Appeals cited to the Arizona Supreme Court case of Sell vs. Gama where the Arizona Supreme Court held a lower court, such as the Arizona Court of Appeals, are bound to follow Arizona Supreme Court decisions.
The Arizona Supreme Court indicated only it can change Arizona Supreme Court decisions; which would include Arizona Supreme Court decisions ruling that a parent must prove the existence of a substantial and continuing change in circumstances before a judge can order a modification of a child custody order in Arizona.
However, the Arizona Court of Appeals indicated that the equitable principle of res judicata could preclude a parent from attempting to modify a child custody order when circumstances have not changed since the entry of the prior child support order as discussed in the Arizona Court of Appeals’ decision in the case of Black vs. Black.
This recognition of the principle of res judicata from the Black case would render the Arizona Court Appeals’ conclusion that a substantial and continuing change in circumstances is not required to modify a child custody order somewhat moot; although applying res judicata approach would likely eliminate the need to prove a change of circumstances is “substantial” in order to be entitled to a trial on a modification of a child custody order.
What Constitutes a Substantial and Continuing Change in Circumstances
In the Backstrand case, the Arizona Court of Appeals concluded that Mother’s relocation to Nevada did, in fact, constitute a substantial and continuing change in circumstances justifying the trial court’s decision to modify the preexisting child custody orders.
For example, Mother’s move made it impossible to comply with a provision in the child custody orders requiring the child to attend school in Arizona.
The Court of Appeals cited to prior appellate decisions that held the parenting provisions of a child custody order represents a snapshot that forms the baseline from which future courts assess whether a material change of circumstances has occurred.
In fact, the rationale for the child custody factors set forth in A.R.S. 25-403 is to provide a record for any future petitions alleging there has been a significant and continuing change in circumstances from that baseline.
Therefore, any change that reduces or eliminates any part of a parenting plan constitutes a change of circumstances because that part of the child custody order no long advances a child’s best interests and undermines the stability of a fully enforceable parenting plan.
Arizona Child Custody Attorneys at Hildebrand Law, PC
If you have questions about change in circumstances: custody modification in an Arizona divorce case, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona child custody and family law attorneys have over 100 years of combined experience successfully representing clients in child custody 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 custody or family law case around today.
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About the Author: Chris Hildebrand has over 26 years of Arizona family law experience and received awards from US News and World Report, Phoenix Magazine, Arizona Foothills Magazine and others. Visit https://www.hildebrandlaw.com.