Family Law: Relocation
Arizona law strictly controls any intent to relocate a child whose parents are divorced
and have joint custody. This is no light matter for anyone involved, and the penalties
for the relocating parent may be severe. As a family law attorney practicing in
Tucson and Arizona for years, I see a real need for parents to understand fully
what the law requires for the best interest of the child.
Legal context of the relocation of a child
When a relocation dispute arises between the joint custodians of a minor child, a reviewing court is controlled by the provisions of Arizona Rev. Stat. § 25-408 and the parents’ decree of dissolution, to the extent it addresses the issue.
Note that it is common for a decree to forbid either parent from taking the child out of the State of Arizona for more than a short duration and/or typically to prohibit either parent from relocating out of State with the child absent consent from the other parent or a court order.
This is where Ariz. Rev. Stat. § 25-408(H) comes into play: “The court shall not deviate from a provision of any parenting plan or other written agreement by which the parents specifically have agreed to allow or prohibit relocation of the child unless the court finds that the provision is no longer in the child’s best interests. There is a rebuttable presumption that a provision from any parenting plan or other written agreement is in the child’s best interests.”
Relocating a child must be done in his/her best interests
This is the relocating parent’s first hurdle: rebut the legal presumption that the parties’ prohibition on relocation is in the child’s best interests.
Ariz. Rev. Stat. § 25-408(G) presents the next hurdle: “The burden of proving what is in the child’s best interests is on the parent who is seeking to relocate the child.” The common thread in both statutory sections is clear: relocation must be in the best interests of the child.
Indeed, “The court shall determine whether to allow the parent to relocate the child in accordance with the child’s best interests.” Ariz. Rev. Stat. § 25-408(G). Again, although the court must ultimately make a decision that is in the best interests of the child, it is the relocating parent who has the burden of not only demonstrating that the proposed relocation is such, but also overcoming the statutory presumption that a decree prohibiting relocation is what in the child’s best interests.
What criteria to the burden of proof?
For the relocating parent to meet their burden, they must demonstrate that the relocation is in the child’s best interests according to, first, the factors enumerated in Ariz. Rev. Stat. § 25-408(I):
1. The factors prescribed under 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.
3. The prospective advantage of the move for improving the general quality of life for the custodial parent or for the child.
4. The likelihood that the parent with whom the child will reside after the relocation will comply with parenting time orders.
5. Whether the relocation will allow a realistic opportunity for parenting time with each parent.
6. The extent to which moving or not moving will affect the emotional, physical or developmental needs of the child.
7. 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.
8. The potential effect of relocation on the child’s stability.
Other factors considered under Arizona law
Excluding factor (1), which will be addressed shortly, Ariz. Rev. Stat. § 25-408(I) presents seven distinct factors that must be weighed in arriving at a conclusion about a proposed relocation.
None of these factors are individually controlling; all of them should be weighed collectively. [Pollock v. Pollock, 181 Ariz. 275 (Ariz. Ct. App. 1995)]
Ariz. Rev. Stat. § 25-408(I)(1), in applying “The factors prescribed under section 25-403,” also adds an additional burden on the parent seeking relocation. Ariz. Rev. Stat. § 25-403(A) prescribes ten additional factors that must be weighed:
1. The wishes of the child’s parent or parents as to custody.
2. The wishes of the child as to the custodian.
3. The interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings and any other person who may significantly affect the child’s best interest.
4. The child’s adjustment to home, school and community.
5. The mental and physical health of all individuals involved.
6. Which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent.
7. Whether one parent, both parents or neither parent has provided primary care of the child.
8. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding custody.
9. Whether a parent has complied with Chapter 3, Article 5 of this title.
10. Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02.
17 factors to be considered when relocating out of Arizona a child under joint custody
Combining § 25-408(I) with § 25-403(A), the parent seeking relocation has an exhaustive list of seventeen (17) factors that must be addressed and weighed in proving to the Court that the relocation is in their child’s best interests; this is an even more substantial burden than must be met in a typical custody case.
A parent seeking relocation would be wise to keep that in mind when making the personal choice about whether they intend to move out of Arizona with a child that also has another joint custodian.
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