When Arizona’s Child Relocation Statute Does Not Apply
In Arizona, the decision of the court regarding relocation of a minor child may trigger the application of Arizona Revised Statute 25-408 (I). There are situations, however, when Arizona’s child relocation statute does not apply.
Whether this statute is applicable depends upon two factors being in place; specifically, the existence of a written agreement or court order regarding custody of the minor child(ren) and both parents are currently residing in the state of Arizona. In Buencamino v. Noftsinger, the Arizona Court of Appeals evaluated the trial court’s ruling regarding whether Arizona Revised Statute Section 25-408 was applicable to the parties case.
The Father (Appellant) and Mother (Appellee) had a child together in 2004. The parents were never married. The child lived at times with each of the parents separately, and at other times with both parents together in the same household. In 2006, the child was living separately with Father. At this time, Mother made the decision to marry and move to Maryland to join her new spouse. Mother wanted the minor child to accompany her to Maryland, but Father did not agree to the move.
Mother moved to Maryland with the child staying with Father. There was no written agreement or court order regarding custody (legal decision making) or parenting time regarding the child. When Mother moved to Maryland, Father filed a paternity action. A trial was held and the family court entered an order awarding joint custody and equal parenting time between Father and Mother.
Father appealed the court’s order, arguing that the case was one of relocation and the family court failed to consider the relocation factors set forth in Arizona Revised Statute 25-408(I). Arizona Revised Statute Section 25-408(I) states that “in determining the child’s best interests the court shall consider all relevant factors, including:
- The factors prescribed in Arizona Revised Statute Section 25-403. 2;
- Whether the relocation is being made or opposed in good faith and not to interfere with or to frustrate the relationship between the child and the other parent or the other parent’s right of access to the child;
- The prospective advantage of the move for improving the general quality of life for the custodial parent or for the child;
- The likelihood that the parent with whom the child will reside after the relocation will comply with parenting time orders;
- Whether the relocation will allow a realistic opportunity for parenting time with each parent;
- The extent to which moving or not moving will affect the emotional, physical or developmental needs of the child;
- The motives of the parents and the validity of the reasons given for moving or opposing the move, including the extent to which either parent may intend to gain a financial advantage regarding continuing child support obligations; and
- The potential effect of relocation on the child’s stability.
After considering the issue and related statutes, the Arizona Court of Appeals affirmed the order of the family court and reaffirmed that Arizona Revised Statute Section 25-408(B) outlines the statutory prerequisites to be applied when considering the statutory relocation factors.
Pointing towards the plain language of the statute, the Arizona Court of Appeals concluded the family court was required to consider the statutory relocation factors only when one of two prerequisites were met:
- the existence of a written agreement or court order regarding custody or parenting time by both parents; and
- Both parents are residents of the state of Arizona.
In Buencamino v. Noftsinger, neither prerequisite was met, thus the Arizona Court of Appeals held that the family court was not required to consider the statutory relocation factors of Arizona Revised Statute Section 25-408.
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