How does my son keep his ex-wife from moving to another state with their children?
Full Question:
Answer:
Typically, at the time of the divorce, both parents are living in the same town. But it happens sometimes that at some point after the divorce, one parent wants to move away. Often this is because of a job offer. Other times, the party simply wants to return to his or her family. The issue then becomes: can the parent who is staying behind prevent the other party from moving?
If it is the parent who does not have physical custody, there is no issue. That parent may move. Often, visiting arrangements have to be changed, to allow for fewer, but longer, blocks of time. Typically, children visit spouses in other states during winter break and for part of the summer. However, if the parent who has physical custody wants to move, and the other parent protests, the courts in most states have the authority to decide, on behalf of the children, whether the custodial parent may move.
The courts typically consider the following factors:
-Whether the move will improve the child's school or community.
-Whether the parent's motive was to harm the non-custodial parent.
-Whether the non-custodial parent's motive in resisting the move is to harm the custodial parent.
-Whether the non-custodial parent will still be able to have ongoing and significant contact with the child.
-The nature of the non-custodial parent's contact with the child so far. In cases that denied the move, a consistent theme is that the other parent has spent many hours each week with the child, consistently showed up for all his or her visitations, and established a close, supportive, and loving relationship with the child.
-The effect, either way, on the child's contact with grandparents and other people who are important influences in his or her life, as well as contact with the child's native culture.
Section 25-408 of Article 1 of Chapter 4 of the Arizona Revised Statutes provides, in part, as follows: At least sixty days' advance written notice shall be provided to the other parent before a parent may do either of the following: 1) Relocate the child outside the state; 2) Relocate the child more than one hundred miles within the state. The notice required by this section shall be made by certified mail, return receipt requested, or pursuant to the Arizona rules of civil procedure. A parent who does not comply with the notification requirements is subject to court sanction. The court may impose a sanction that will affect custody or parenting time only in accordance with the child's best interests.
If a child's parents and/or grandparents live in different states, one of several laws will determine the appropriate court to hear a custody or visitation case. If a valid custody or visitation decree has been entered in one state, the Parental Kidnapping Prevention Act requires that another state must enforce and must not modify the decree. Another state may modify the decree only if the original state no longer has jurisdiction over the case or has declined jurisdiction to modify the custody or visitation decree. Congress amended this statute in 1998 to include a grandparent in the definition of "contestant."
If no state has made a valid custody determination, the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act, as adopted by each state, will apply. A court in a particular state has power to hear a custody case if that state is the child's "home state" or has been the home state of the child within six months of the date the legal action was brought and at least one parent continues to reside in the state. Other situations include those in which a state with jurisdiction over a custody case declines jurisdiction or no other state may assert jurisdiction over the child.
The following are AZ statutes:
25-408. Rights of noncustodial parent; parenting time; relocation of child;
exception; enforcement; access to records
A. A parent who is not granted custody of the child is entitled to
reasonable parenting time rights to ensure that the minor child has
frequent and continuing contact with the noncustodial parent unless the
court finds, after a hearing, that parenting time would endanger seriously
the child's physical, mental, moral or emotional health.
B. If by written agreement or court order both parents are entitled to
custody or parenting time and both parents reside in the state, at least
sixty days' advance written notice shall be provided to the other parent
before a parent may do either of the following:
1. Relocate the child outside the state.
2. Relocate the child more than one hundred miles within the state.
C. The notice required by this section shall be made by certified mail,
return receipt requested, or pursuant to the Arizona rules of civil
procedure. A parent who does not comply with the notification requirements
of this subsection is subject to court sanction. The court may impose a
sanction that will affect custody or parenting time only in accordance with
the child's best interests.
D. Within thirty days after notice is made the nonmoving parent may
petition the court to prevent relocation of the child. After expiration of
this time any petition or other application to prevent relocation of the
child may be granted only on a showing of good cause. This subsection does
not prohibit a parent who is seeking to relocate the child from petitioning
the court for a hearing, on notice to the other parent, to determine the
appropriateness of a relocation that may adversely affect the other
parent's custody or parenting time rights.
E. Subsection B of this section does not apply if provision for
relocation of a child has been made by a court order or a written agreement
of the parties that is dated within one year of the proposed relocation of
the child.
F. Pending the determination by the court of a petition or application to
prevent relocation of the child:
1. A parent with sole custody or a parent with joint custody and primary
physical custody who is required by circumstances of health or safety or
employment of that parent or that parent's spouse to relocate in less than
sixty days after written notice has been given to the other parent may
temporarily relocate with the child.
2. A parent who shares joint custody and substantially equal physical
custody and who is required by circumstances of health or safety or
employment of that parent or that parent's spouse to relocate in less than
sixty days after written notice has been given to the other parent may
temporarily relocate with the child only if both parents execute a written
agreement to permit relocation of the child.
G. The court shall determine whether to allow the parent to relocate the
child in accordance with the child's best interests. The burden of proving
what is in the child's best interests is on the parent who is seeking to
relocate the child. To the extent practicable the court shall also make
appropriate arrangements to ensure the continuation of a meaningful
relationship between the child and both parents.
H. 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.
I. In determining the child's best interests the court shall consider all
relevant factors including:
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.
J. The court shall assess attorney fees and court costs against either
parent if the court finds that the parent has unreasonably denied,
restricted or interfered with court-ordered parenting time.
K. Pursuant to section 25-403.06, the noncustodial parent is entitled to
have access to documents and other information about the child unless the
court finds that access would endanger seriously the child's or the
custodial parent's physical, mental, moral or emotional health.
25-403. Custody; best interests of child
A. The court shall determine custody, either originally or on petition
for modification, in accordance with the best interests of the child. The
court shall consider all relevant factors, including:
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.
B. In a contested custody case, the court shall make specific findings on
the record about all relevant factors and the reasons for which the
decision is in the best interests of the child.
