How do I get a modification of custody, parenting time, or legal decision-making?
Under the old law, you had to allege a substantial and continuing change in circumstances (usually they must also have been “unanticipated”) prior to filing for a modification of custody or parenting time. Now, custody is legal decision making and the statutory requirements for when to file a modification have changed.
Under Arizona Revised Statutes 25-411:
A person shall not make a motion to modify a legal decision-making or parenting time decree earlier than one year after its date…unless the court permits it to be made on the basis of affidavits …that there is reason to believe the child’s present environment may seriously endanger the child’s physical, mental, moral or emotional health.
So the general rule is that you must wait an entire year prior to filing for a modification unless you have sworn statements that the current plan seriously endangers the child. After that, you need not allege a change in circumstances. It need not be unanticipated and can even be temporary.
The statute continues:
At any time after a joint legal decision-making order is entered, a parent may petition the court for modification of the order on the basis of evidence that domestic violence involving a violation of section 13-1201 or 13-1204, spousal abuse or child abuse occurred since the entry of the joint legal decision-making order.
This section of the statute is important because while the State strongly prefers joint legal decision-making, that is not the case in relationships involving abuse. Whether the abuse occurs before or after the order, domestic abuse is a great reason to ask the court to modify joint legal decision-making.
Six months after a joint legal decision-making order is entered, a parent may petition the court for modification of the order based on the failure of the other parent to comply with the provisions of the order.
The final reason that you can ask a court to modify a court order is six months after the entry of that order and the other party is not complying. Prior to that six month mark, you could file an action for enforcement of the order, but you may not ask that court to modify the order.
There are many reasons you may want to have your court order modified. You do not always have to go through the courts. If you and the other parent agree to a modification you may modify informally or by consent. For any questions on modification of parenting time, custody, or legal decision-making, give us a call for a free consultation.