Relocation and Sole Legal Decision Making
I have sole legal decision making authority of my 6 year old and I have her more throughout each week (mother has her 76 hours, I have her 92 hours per week.) My job is relocating me from Phoenix to Denver within a month and a half.
I have advised her mother and attempted to come to a parenting time agreement but was unsuccessful. I went to court, filed post decree temporary modification without notice because of the time sensitivity and the judge denied to see my case. I also filed to modify what we have but was denied because both mother and I failed to attend the high conflict parenting class. I am truly concerned for my daughter and could not leave her behind.
What can I do to get this modified?
I am hoping that I could have her during the school year and her mother having her during summer breaks. Lastly, I do not understand why I am paying child support when I have her more of the time. I look at it as long as it helps her I am happy but then enables her mother and boyfriend to not work. Plus, I believe they are receiving state assistance illegally for my daughter! Please help.
Wow, you have a lot going on in this scenario. In Arizona relocation is dealt with in A.R.S. 25-408:
The statute requires that you provide 45 days written notice by certified mail. Your ex would need to file a petition to prevent within thirty (30) days or you are permitted by statute to relocate.
You also have the ability to file a Petition for Modification with Notice and request Temporary Orders.
The Court denied your Petition without Notice because your situation is not an emergency and your ex is entitled to be heard regarding this matter. The Court is very strict on what cases they will hear on an emergency basis and only hear very few cases on an emergency basis.
The Court denied your request not because he/she does not believe you should be able to move for employment but because your basis does not satisfy the Court’s requirement that the child is in a grave situation and that grave situation outweighs Mother’s right to be heard. If the Court is requiring that you attend the high conflict resolution class, you should schedule it as soon as possible so that at least you have satisfied that requirement and can file.
- If by written agreement or court order both parents are entitled to joint legal decision-making or parenting time and both parents reside in the state, at least forty-five days’ advance written notice shall be provided to the other parent before a parent may do either of the following:
- Relocate the child outside the state.
- 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 family law procedure. The court shall sanction a parent who, without good cause, does not comply with the notification requirements of this subsection. The court may impose a sanction that will affect legal decision-making or parenting time only in accordance with the child’s best interests.
- 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 legal decision-making or parenting time rights.
- Subsection A 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.
- If a child is relocated pursuant to this section, unless otherwise ordered by the court, all parties must continue to comply with current court orders, regardless of distance moved or notice required.
- Pending the determination by the court of a petition or application to prevent relocation of the child:
- A parent with sole legal decision-making or a parent with joint legal decision-making and primary residence of a child who is required by circumstances of health, safety, employment or eviction of that parent or that parent’s spouse to relocate in less than forty-five days after written notice has been given to the other parent may temporarily relocate with the child.
I have not included the entirety of 25-408 but it can be seen here: http://www.azleg.state.az.us/ars/25/00408.htm
You are describing a long-distance parenting plan in your question. Pursuant to A.R.S. 25-403, each parent is entitled to frequent and meaningful time. That does not mean equal time but it does mean that you would need to be flexible in maximizing Mother’s time with the child over the child’s school breaks. Parties have to be very careful when drafting their pleadings in relocation cases. Oftentimes individuals will make arguments that the other party is not fit to be a parent and then will request that parent receive a long-distance parenting plan. This is not a great strategy. The Court can and should question how a parent is unfit for parenting time when relocation is at issue but these concerns were not brought prior. If you file for relocation or the other party files to prevent relocation, the Court may allow you to relocate temporarily based on your new employment within the 45 day time limit. There would have to be a pending action for the temporary relocation. As stated above, if you have provided notice and the other party has failed to file a petition within 30 days of notice being given, you would be permitted to relocate. The other party could file a petition to prevent only on a showing of good cause as to why he/she did not file the petition within thirty days.
Child Support is determined using the Arizona Child Support Guidelines. Rather than go into an in-depth explanation of child support and all of the factors I’ll simply say that while I do not have the information necessary to determine why your particular situation resulted in an order, the most common causes would be difference in party incomes, insurance costs, additional children being supported, and child care costs. Without additional information I cannot tell you why you are paying on your order. If your situation changes based on relocation, your child support order is likely to change as well.
I hope this helps. Congratulations on the new job and potential move.