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Relocation is a Modification of Child Custody in Arizona Triggering the One Year Rule

Wed 15th Mar, 2023 Arizona Child Custody Laws

Mother and Father divorced in Arizona in 2009 and subsequently entered into a parenting agreement. Under their 2009 parenting agreement, Mother and Father shared joint physical custody and joint legal decision making of their children.

In January 2014 an Arizona court modified the 2009 parenting agreement, increasing Father’s parenting time with the children. The January 2014 order awarded Father six days with the children every two weeks.

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In February 2014 Mother planned to remarry and wished to move with the children to Nebraska. Father responded by filing a motion to prevent relocation with the Superior Court to prevent Mother’s relocation.

The Superior Court granted Father’s motion, preventing Mother from relocating with the children to Nebraska. Mother then appealed her case to the Arizona Court of Appeals.

Arizona Laws on Relocating Children

The Arizona Court of Appeals began the opinion by acknowledging that the parenting time of the parties in this case would naturally be affected by Mother’s relocation to Nebraska.

In Arizona, the laws pertaining to relocation are inherently intertwined with the laws on parenting time and legal decision making. To understand Arizona relocation laws, therefore, it is important not to miss the forest for the trees.

A.R.S. § 25-408 is the general statute governing relocation of children in Arizona. Under § 25-408(A)(1) it states that “if by written agreement or court order both parents are entitled to joint legal decision making or parenting time and both parents reside in the state, at least forty-five days’ advance written notice shall be provided to the other parent before a parent may relocate the child” more than 100 miles.

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Essentially, when parents have a parenting decree in place and both parents reside in Arizona, restrictions are placed on a parent’s ability to relocate their children. Parent’s cannot simply relocate with the children more than 100 miles of their residence without approval from either the other parent or the court.

The requirement of notice is an important aspect of the statute because it gives the non-relocating parent an opportunity to object to the relocation by filing a motion to prevent relocation with the court.

Pursuant to § 25-408(C), when the court is petitioned to prevent another parent’s relocation, the court must take the time to determine the appropriateness of the relocation, focusing on how the relocation adversely affects the parental rights of the non-relocating parent. Such parental rights include parenting time and legal decision making.

Per § 25-408(G), when ruling on a relocation request the court must also take into consideration the best interest of the children when determining whether a relocation is appropriate. To determine a child’s best interest a court must consider all relevant factors, including the factors prescribed in A.R.S. § 25-403.

The burden of proving that the relocation is in the child’s best interest is on the parent requesting relocation.

Lastly and most importantly in this case, A.R.S. § 25-411 provides that a court generally cannot, with a few exceptions, modify an order for legal decision making or parenting time “earlier than one year after its date.”

In other words, parents with child custody orders in place must wait at least one year before a court will consider modifying those child custody orders.

There are certain exceptions to the one-year limitation on modification of child custody in Arizona, but in this specific case none of those exceptions applied.

Relocating Children Out of State Implies a Modification of Child Custody

Relocation Necessitates a Modification of Child Custody Orders.

The Arizona Court of Appeals emphasized Mother’s relocation would necessarily imply a change in the parties’ parenting time, and possibly legal decision making as well.

That meant that the parties January 2014 agreement was subject to the one-year limitation regarding modifications of parenting time and legal decision-making orders.

The Arizona Court of Appeals also noted that specific findings of fact would have to be made regarding the best interest of the children before Mother’s relocation could be deemed appropriate.

Although there is no specific language in § 25-408 stating that a court must make findings of fact on the best interest of the child, such findings are required because Mother’s relocation to Nebraska would involve a “substantial change in physical custody.”

The Arizona court of Appeals cited Owen v. Blackhawk, 206 Ariz. 418, 79 P.2d 667 (2003) in support of this proposition. Under Owen, when a relocation involves a change in physical custody and parenting time, a court must make findings of fact on parenting time and legal decision making, using the factors listed in §25-403 to determine the best interest of the child.

The Arizona Court of Appeals made clear that because a year had not passed since the parties’ January 2014 order, the court had no basis to modify the child custody orders. The Arizona Court of Appeals determined the Superior Court correctly granted Father’s motion to prevent Mother’s relocation.

Parents Can Still Agree to Relocate Without Court Intervention

Mother argued the Superior Court failed to enforce an agreement she reached with Father while Father’s motion to prevent relocation was pending.

Mother produced emails and text messages she believed evidenced an agreement to allow Mother to relocate with the children to Nebraska.

One of the emails produced by Mother was an email sent from Father to his attorney. Contained in that email was a three-page document outlining terms by which Mother would be allowed to relocate to Nebraska with the children at the end of the school year.

The document incorporated major provisions such parenting time, child support, telephone access, medical expenses, costs of the children’s extracurricular activities, tax exemptions, and attorney fees.

In the email Father wrote “this is the reconciliation we hammered out … if you would prep this into a submittable format and send me and her attorney a copy so we can all thumbs up before it is submitted.”

After Father’s attorney failed to respond to the email, Father sent an email to Mother stating that his attorney had not responded yet but that he “made it very clear to go right ahead.”

After Father’s attorney had not responded in a timely fashion, Father sent a follow up email to his attorney stating “I have twice indicated in phone messages over the last few weeks that my ex-wife and myself are in agreement and have come to a mutually acceptable arrangement … I am in agreement with its contents which I have read and understand.”

Father did not deny he reached an agreement with Mother, but Father argued that he had not actually signed any such agreement.

Agreements to Relocate Must be in Writing and Signed to be Enforceable

A Parent May Not Relocate a Child Within One Year of the Issuance of Child Custody Orders in Arizona.

Arizona Rule of Family Law Procedure 69 states that an agreement shall be valid and binding if it is in writing and signed by the parties, or the agreement’s terms are stated by the parties on the record before a judge.

The Arizona Court of Appeals noted Rule 69 is to be interpreted consistently with similar rules contained in the Arizona Rules of Civil Procedural, stating that “no agreement or consent between parties or attorneys in any matter is binding if disputed, unless it is in writing or made orally in open court, and entered in the minutes.”

Therefore, the Arizona Court of Appeals suggested that Father’s writings could constitute an enforceable agreement under Rule 69.

The Arizona Court of Appeals declined to decide the issue directly, electing to remand that issue back to the Superior Court.

Even though the Arizona Court of Appeals did not decide the issue, the legal requirement of a signed writing remains a well-established requirement of enforceability.

Without a signed writing, any such agreement, such as the one between Mother and Father, is at serious risk of being unenforceable by a court.

Providing Evidence of a Relocation Agreement

The Arizona Court of Appeals found that the Superior Court had improperly excluded Mother’s emails from being used as evidence of the agreement.

The Superior Court cited Arizona Rule of Evidence 408 in support of excluding Mother’s proffered emails.

Rule 408 bars evidence of compromise offers “to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement.”

However, Rule 408 does not bar such evidence given for reasons other than proving the validity of a claim.

Here, Mother had not offered the emails to prove the validity of her relocation claim, and Mother had not offered the emails to prove that the relocation was in the best interest of the children. In other words,

Mother was not offering evidence of settlement negotiations to prove her relocation claim on its merits. Instead Mother had offered the emails to prove that the parties had reached an agreement on the relocation claim. Mother was offering the evidence to prove the parties had settled their claim.

Although the Arizona Court of Appeals did not rule on whether an agreement was actually reached between Father and Mother (that issue was remanded back to the Superior Court), it did rule that Mother’s emails were improperly excluded.

Relocating Must be Proven to be in the Best Interest of the Child

Relocation Must Be In Children's Best Interests.

Father also argues, in support of not enforcing the agreement, that the Superior Court had already found that relocation to Nebraska was not in the children’s best interest.

The Arizona Court of Appeals noted, however, that although the Superior Court had ruled on the issue of the best interest of the children, the Superior Court had made that ruling without making any findings of fact or gathering any evidence.

When the best interest of a child is a disputed issue between the parties, the court must allow each party to present evidence before it can ultimately determine the best interest of the child.

Award of Attorney’s Fees in Arizona

Lastly, Mother argues that the lower court incorrectly awarded Father attorney’s fees because the Superior Court failed to consider each party’s respective financial resources.

In Arizona an award of attorney’s fees can potentially be granted under A.R.S. § 25-324. The statute allows reasonable attorney’s fees to be awarded “after considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings.”

Here, the Superior Court made no findings on the reasonableness of the parties’ respective legal positions and made no findings regarding the parties’ respective financial resources.

The Arizona Court of Appeals therefore vacated the Superior Court’s award of attorney’s fees to Father.

Both Father and Mother also requested attorney’s fees on their appeal.

However, the Arizona Court of Appeals declined to rule on the issue of attorney’s fees, due to the lack of information regarding the parties’ respective financial resources.

Instead the issue of attorney’s fees was remanded back to the Superior Court.


If a parent wishes to relocate children more than 100 miles from their residence, the parties will need to modify their current parenting plan.

But, parenting plans can generally only be modified by a court after a year has passed, with a few exceptions, since the entry of that last child custody orders.

That does not mean however parents cannot agree on relocating their children.

But, if you do decide to make an agreement outside of the courtroom, that agreement must be in writing and signed to be enforceable.

If parents are not able to come to an agreement, be prepared to show with evidence that the proposed relocation is or is not in best interest of the child.

Arizona Child Relocation Attorneys

If you have questions about child custody laws in Arizona, 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 child custody or family law case around today.

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