publications - family law
Modifications of Child Custody/ Visitation
How do I file for a modification of custody and/or visitation?
A motion to modify a custody decree can not be made earlier than one year after the date entered, unless the court allows it based on filed affidavits--sworn statements signed before a notary, which alleges that the child's present living arrangements may seriously threaten his or her physical, mental, moral or emotional health. An action to modify a joint custody order may be brought at any time if domestic violence or child abuse has occured since the entry of the original order. Six months after an order of joint custody, a parent may request modification if the other party has failed to follow the provisions of the original court order.A.R.S. § 25-403(T). This statute also requires that any motion or petition to modify a custody order meet the requirements of A.R.S. § 25-408 and A.R.S. § 25-411
To modify custody a person must submit an affidavit or verified petition setting forth detailed facts supporting the requested modificaiton. The affidavit or verified petition must be served on the opposing party and on any other party to the proceedings whou may object to the modification. The party opposing modification may file an opposing affidavit. If the court finds adequate cause a date will be set for hearing on why the requested modification should not be granted. A.R.S. § 25-411. This only applies to modification of custody not to the modification or clarification of visitation. Pima County has local rules which specify the procedure for custody modification. Pima County Rule 8.4(f).
In the past the court's have found that a custodial parent's negative attitude toward the other parent, which affected visitation justified a change in custody. Hahman v. Hahman, 129 Ariz. 101, 628 P.2d 984 (Ariz. App. 1981).
The court's have alos found that when young children are placed in one home and have remained there for a substantial period of time and the home seems satisfactory, it is not in the best interest of the children to move them.Johnson v. Johnson, 13 Ariz. App. 574, 479 P.2d 721 (1971).
Can I relocate with my children after I divorce?
When there is a serious threat that the child may be removed from the state contrary to the custody order, an injunction can be issued by the court. However, before enjoining removal the court should weigh all the factors, such as the effect of visitation, the relationship of the parties, and the relationship of the children. Bloss v. Bloss, 147 Ariz. 524, 711 P.2d 663 (Ariz. App. 1985).
If both parents are entitled to custody or visitation and both reside in this state, at least sixty days written notice shall be provided to the other parent, before a parent may relocate the child outside the state or more than hundred miles within the state, unless a provision for relocation has been made by court order or a written agreement of the parties that is dated within one year of the proposed relocation of the child. The notice must be made by certified mail, return request receipt requested or pursuant to Arizona Rules of Civil Procedure . See Service of Process page. A parent who does not comply with the notification requirement is subject to sanction. Within in thirty days of receiving the notice, the non-moving parent may request a hearing to prevent the relocation. A parent with sole custody or joint custody and primary physical custody may relocate pending the hearing , if health, safety, or employment demand it. A parent who shares joint custody and substantially equal physical custody may relocate pending the hearing, if health, safety, or employment demand, only if both parents execute a written agreement to permit the relocation of the child. The court shall determine whether to allow the parent to relocate the child based on the child's best interests. It is up to the parent attempting to relocate to show it is in the best interest of the child to relocate. The court will consider:
- The wishes of the child's parent or parents as to custody.
- The wishes of the child as to the custodian.
- 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.
- The child's adjustment to home, school and community.
- The mental and physical health of all individuals involved.
- Which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent.
- Whether one parent, both parents or neither parent has provided primary care of the child.
- The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding custody.
- Whether a parent has complied with chapter 3, article 5 of this title.
- Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02.
And the following considerations under A.R.S. § 25-408.
- 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.
- The prospective advantage of the move for improving the general quality of life for the custodial parent or for the child.
- The likelihood that the parent with whom the child will reside after the relocation will comply with parenting time orders.
- Whether the 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 intend to gain a financial advantage regarding continuing child support obligations.
- The potential effect of relocation on the child's stability.
If the nonmoving parent has had visitation with the child, the court shall permit the move only if appropriate visitation arrangements have been made for the future. After 30 days any petition or other application to prevent relocation of the child may be granted only on a showing of good cause. A.R.S. § 25-408.