Q&A with Kaine Fisher, Director of Rose Law Group Family Law Department
“I was divorced 5 years ago and have since remarried. My ex-husband and I have an eight-year-old daughter and a five-year-old son. My current husband is in the United States Army and he just received word he is being re-stationed to Fort Benning in Columbus, Georgia. I obviously want to move with him and bring the kids. Can I go?”
Not so fast. You’re always free to move but whether you can bring your children with you is a different story.
If you have a written agreement or court order for joint legal decision-making, and both you and the other parent have unsupervised parenting time, and both you and the other parent still reside in the State of Arizona, you must first take certain steps to notify the other parent of your intent to move. If a relocating parent has sole legal decision-making, and only supervised parenting time is afforded to the other parent, then the relocating parent does not have to provide notice. So, in other words, the non-relocating parent under this latter scenario really has no say in the matter. If you’re thinking this isn’t fair – you’re not the only one.
The notice requirement applies to moves outside of Arizona and moves greater than 100 miles within Arizona. For instance, a move from Surprise to Chandler would not trigger the notice provision (at least not now which I will explain later), but a move from Phoenix to Bullhead City, Arizona or Laughlin, Nevada would. The relocating parent’s residence at the time of entry of the existing legal decision-making and parenting time orders what is used as a starting point for calculating distance.
What does providing notice entail? Well, for starters, you are required to send notice to the other parent by certified mail, return receipt requested, or by personally serving the other parent with your notice using a process sever. This must be accomplished at least 60 days prior to your anticipated departure date. It is imperative that you comply with the notice requirements before moving or you could face serious sanctions, which could include financial penalties, losing your decision-making status or worse yet, a significant reduction in your parenting time.
Once notice has been properly given, the other parent must file a Petition to Prevent Relocation with the court within 30 days. If a Petition is filed by the non-relocating parent, then a hearing is set, so buckle up. If such a Petition is not timely filed by the non-relocating parent, then you are free to go with the children. Also keep in mind though that only under some rare circumstances is the relocating parent given permission to move prior to the court’s determination so it is not wise to bank on this.
Understand that the burden is on the relocating parent to show that relocation is in the children’s best interests. The best interest factors can be found in A.R.S. § 25-403 and the court will also apply and weigh several other factors set forth in A.R.S. § 25-408 with an eye toward ensuring a continuation of a meaningful relationship between the children and both parents. Very few relocation requests are granted, and those that are, often involve an expert witness. As you can imagine, these cases can be very expensive to litigate so be sure to hire a competent attorney. Continue reading:
Kaine Fisher, Director of Rose Law Group Family Law Department, can be reached at kfisher@roselawgroup.com or 480-240-5649
