When Child Relocation Factors Do Not Apply in Arizona

There are times when a child relocation statute does not apply in Arizona. In Arizona, when there is a court order establishing custody and/or parenting for both parents, and both parents reside in the state, either party is required to provide written notice of at least sixty days in advance to the other parent before relocating the child outside of the state or relocating the child more than one hundred miles within the state of Arizona.

In considering the following case, the Arizona court of appeals found it necessary to determine the applicability of statutory relocation provisions. C.P. was born in Arizona in 2004. Both her mother and father resided in the state. They were not married. C.P spent some time residing with both parents as well as time spent residing with each parent individually. In Fall 2006 C.P. was living with her father.

Her mother informed the father that she was moving to Maryland due to her marriage to John Noftsinger and that she wanted to take C.P to Maryland. Father did not agree, and mother moved to Maryland without C.P. There were no written agreements in place regarding child custody or parenting time at this time.

In December 2006, the father filed a paternity action seeking sole custody. The mother was served in Maryland in February 2007. She failed to file a response promptly, so the father applied for default.

Later, the mother failed to appear at the Resolution Management Conference, the default was noted by the family court, and a temporary order was issued granting sole custody to the father. No mention of parenting time was included in regards to the mother. Not long after, the mother filed a cross-petition for sole custody of C.P.

A trial occurred for the case on January 2008 at which time the family court entered an order providing joint custody and equal parenting time. After the order was entered, the father attempted to file a motion for a new trial which was unsuccessful. He now appeals both the order entered by the family court and the denial of his motion for a new trial. The Arizona Court of Appeals court had jurisdiction to hear the appeal in this matter.

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Applicability of the Relocation Provisions

When denying the motion for a new trial, the family court judge specified that the factors as outlined in A.R.S. §§ 25-403(A) and 403.01(B) were considered, but that the relocation factors outlined in A.R.S. § 25-408(I) were not specifically addressed. The father argues that this was a wrong way of handling the issue as this is a “relocation” case. The mother wants to relocate with the child to Maryland, and the father wants to continue residing with the child in Arizona.

In a review of the relocation provisions, it is important to pinpoint the intent of the legislature as well as any qualifying factors.  In this instance, two prerequisites are established in regards to the statute regarding relocation of or with the child; specifically, a written agreement or court order that provides custody or parenting time for both parents and both parents being residents of Arizona.

In the case of Buencamino v Noftsinger, neither prerequisite existed at the time of the court ruling. There was not a written agreement or custody order outlining custody and parenting time for both parents. The temporary order obtained by the father included no mention of the mother. Also, at the time of the action, the mother was already residing in Maryland, so both parents are not residents of the state of Arizona.

Due to these facts, and according to the plain language of the law, the statutory prerequisites for the application of the relocation provisions in the statute did not exist in this case. Therefore, the family court was not required to consider the relocation requirements or make any particular findings following the factors as prescribed by that specific statute. The family court’s custody order was affirmed for the reasons stated above.

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Chris Hildebrand wrote this article to ensure everyone has access to information about family law in Arizona. Chris is a divorce and 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 divorce should all be guided by the principles of honesty, integrity, and, quite frankly, actually caring about what his clients are going through in a divorce or family law case. In short, his practice is defined by the success of his clients. He also manages all of the other attorneys at his firm to make sure the outcomes in their clients’ cases are successful as well.

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