Relocation: Do you want to move out of state with your child?
Relocation: Do you want to move out of state with your child?
Life happens. People move.
Every day people are free to make decisions to make a better life somewhere else. Sometimes it’s a job opportunity. Sometimes it’s a new relationship. Sometimes you just want to be closer to family or friends or you need a new start.
But what happens when you share custody with an ex who lives in Arizona? The reality is that this situation comes up every day. A couple is either getting divorced and needs an initial custody plan or a couple has had an existing plan with both parents in Arizona for a long time and someone needs to move. This has happened to me personally and it has happened to many of my clients.
In my case, I moved from Oregon to Arizona in 2009 when my step-daughter was nine years old. We needed to move from Eugene, a small town with few job opportunities in the height of the great recession, to Phoenix where my husband had been offered a position with First Solar. There was no doubt it was the best thing for our family, but it meant leaving Kailey behind. We knew she wouldn’t come. Oregon is a state that only allows joint custody if both parents agree. If one parent doesn’t agree to joint custody, someone will be given sole custody – usually the primary care giver – usually the Mother. Kailey’s mom has sole custody. She was thriving in school and life, no judge would take her from her stable home environment to go on our adventure to Phoenix. This was the heartbreaking reality we had to face as we determined whether to stay in a place with no employment or leave behind a member of our family.
These are some of the most difficult cases for family law attorneys because there is no settlement. A child must go to school somewhere. Only on one occasion did a couple I worked with (who home-schooled their child) split time equally when one lived in Canada and the other in Arizona. Most often, the parents must agree – or a judge decides – who will be the primary residential parent, where the child goes to school, and who will be the parent to get the majority of the breaks. This is especially difficult with very young children and teens.
I recently tried a relocation case involving a mom who had recently married a man living in Texas. Originally, their plan was to stay in Arizona. He was looking for positions here and she was working as a paralegal. She unexpectedly lost her job when the attorney she was working for retired. Although her husband was looking for positions here in Arizona, his career is in the oil industry, making it virtually impossible to find work here. After looking for work herself in Arizona, with no luck, she made the decision to move to Texas. She is the parent of two young boys and an 11-yr-old girl. She has sole custody of the boys, and their father did not oppose the move. The Father of the 11-year-old most certainly did oppose the move.
What ensued was an almost year-long court case with counselors, best interest attorneys, and drug testing. Ultimately the judge wanted to know that the mother had done everything in her power NOT to move before making the decision. The judge literally asked her, “What would make you leave your daughter behind?” My client’s answer was “I thought she could come with me.”
We are still waiting on the ruling.
If you find yourself needing or wanting to move, or you find out your ex is planning a move, navigating the law in this particular area is more complicated than any other aspect of custody. The analysis is not limited to the best interest of the children. You will need to be prepared.
Arizona Notice Requirements
The relocation statue is tricky and confusing. ARS 25-408 governs the rights of each parent, parenting time and relocation. It starts with a notice requirement:
A parent seeking to relocate more than 100 miles within the state or out of the state must provide 45 days written notice (certified mail) to the non-moving parent. The non-moving parent can then petition the court to prevent relocation. If the non-moving parent doesn’t petition to prevent relocation, the moving parent is free to go – with the child. BUT, they must still comply with the current parenting time orders.
You can see how this is both tricky and confusing. How can a parent move out of state and comply with existing parenting time orders? It is theoretically possible that a parent who is on a week-on-week-off schedule could fly the child back and forth. This would be easier if the distance is not too great and the child is not in school. I have known couples that split time between Arizona and California, New Mexico and Utah with children not yet in school. It was a lot of driving, and a temporary situation, but it was doable and it is allowed under the statute.
What happens after notice?
The family court process is not fast, so ARS 25-408 continues to offer guidance on what happens to the child and parenting time pending an application to relocate or a petition to prevent relocation.
- If you have sole legal decision-making, or you are a parent with joint legal decision-making but you are required to move because of health, safety, employment or eviction, you are allowed to relocate before the expiration of the 45 days written notice.
- If you have joint legal decision-making and substantially equal parenting time, you can relocate prior to the expiration of the 45 days with the child ONLY with a written agreement by both parents.
The notice requirements of relocation are complicated! Please reach out to an attorney for assistance. The reason this is so important is because the burden of proof is on the moving parent to show a child should move. This is a significant uphill battle. You do not want to begin your case with an angry judge because you misread or misinterpreted the notice provisions of the statue.
We Call This Temporary Relocation
Usually what happens is that notice is given, or one parent skips the official certified mail notice and simply files to relocate or prevent relocation. Now the judge must decide whether to let the child relocate on a temporary basis, before the final hearing on whether or not the child will move or not. This is highly fact-specific. Very young children usually – but not always – stay with their primary caregiver. Sometimes a judge doesn’t allow the move. In effect, the judge can prevent you from leaving the state with your child. This can put the relocating parent in a very tough situation, especially with a very young child or if there are questions about the other parent’s fitness.
If you are seeking to move out of state with your child, you must have your ducks in a row before you file with the court.
The Presumption and Burden of Proof
Whenever there is a legal “Presumption” the parent with the contrary position has the “Burden of Proof.” With regards to relocation, the presumption is that the child should not relocate. The parent seeking to relocate the child must prove to the court that the benefits of moving outweigh the costs of stability and disruption.
In addition to the “normal” Best Interest Factors, the court must also look at:
- Whether the relocation is being made in good faith and not to interfere with or frustrate the relationship between the child and the other parent or the other parent’s right to have access to the child.
- The prospective advantage of the move for improving the general quality of life for the custodial parent and the child,
- The likelihood that the parent with whom the child will reside after the relocation will comply with parenting time orders.
- Whether 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 gain a financial advantage regarding continuing child support obligations.
- The potential effect of relocation on the child’s stability.
These additional factors exist because of the all-or-nothing impact of a move. When you have two good parents, Arizona prefers parenting plans that involve both parents as much as possible. A relocation deprives both parents of the opportunity to fully participate in a child’s life including school, friends, sporting events, etc. Since this is against Arizona’s public policy, the parent seeking to relocate better have a REALLY good reason and it better not be to deprive one parent of his or her ability to be fully involved in the child’s life.
In our case, we knew Kailey would stay in Oregon. Oregon doesn’t have the same public policy to hold each parent as equally important and Oregon had already decided that Kailey’s mom was the more important parent.
The challenge then became designing a plan that would allow her to maximize her relationship with both of her parents and families and figuring out travel plans and costs. Again, because Oregon is not as committed to a child’s relationship with both parents, it was a tricky negotiation. We ended up with a step-up plan to allow Kailey to transition. The plan was renegotiated, with much input from Kailey, when she entered high school.
Agreements in writing
If you and your ex have entered into any written agreement regarding relocation of the child, those agreements will be binding. The statute reads: 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 such written agreement is in the child’s best interest.
Practically speaking, this means you should think about your position on relocation as soon as you can. Some parents build it into their parenting plan when they are divorcing and everyone resides in the state. If you know it’s a possibility, you may need to move out of the state and you can come up with an agreement on what will happen if someone has to move due to their job.
Long-distance parenting plans all look pretty similar. The parent where the child does not go to school (non-residential parent) has the child for the bulk of the breaks and summer. Here is one very liberal sample long-distance parenting plan that maximizes time for the child with the non-residential parent.
Parenting Time Schedule:
Non-Residential Parent will have parenting time with the minor child during the following times*:
- Summer Holiday (May 28-July 29) except that Residential Parent would have parenting time from June 24 to July 1 every year. (Non-residential parent has all summer except a one-week vacation in the middle of the summer for the residential parent).
- Fall Break/Teacher Day (October 7-October 16)
- Every other Thanksgiving Break (November 22-November 26).
- Christmas/Winter break (December 22-January 7) – Non-Residential parent will have parenting time during this holiday, except that in even-numbered years Residential parent will have parenting time with the minor child from December 22 until December 29.
- President’s Day (February 17-February 20) – discretionary.
- Spring Break (March 11-March 18)
Travel Expenses and Logistics
Other issues that must be arranged are the travel expenses and logistics. Will the child be accompanied by a parent on a flight or travel as an unaccompanied minor? Which airport will the child fly into and out of? Will the parents drive and meet halfway or will one parent drive one way and another the other way? Who will pay? Will the cost be split equally, or proportionally according to income? Will the parent who moved bear the cost entirely?
All of these are possibilities that can and do work with relocation.
As you can see, the issue is complex. There is very little compromise. Either the child relocates or does not. You will want an attorney to help you. Call us, we have years of experience.