In today’s mobile society, relocation cases are becoming increasingly common. Parents in divorce or post-divorce cases often ask me whether they will be allowed to move out of state with the children. That question, of course, can rarely be answered definitively “yes” or “no.” Whether relocation with children will be allowed depends on the unique facts of each case and is largely in the discretion of the trial judge, as are most child custody and related decisions.
Relocation cases are governed by A.R.S. Sec. 25-408. The relocation statute only applies when BOTH parents have decision-making or parenting time rights under a written agreement or a court order and where BOTH parents reside in Arizona. When these conditions exist, the parent seeking permission to relocate out of state or more than 100 miles within the state must SERVE written notice of her intention to relocate on the other parent at least forty-five days prior to the planned relocation. Once the notice is served, the other parent has thirty days to petition the court to prevent the relocation. The parent seeking to relocate with the children can also simply petition the court for a hearing to determine whether the planned relocation should be permitted.
If the parents have a parenting plan or written agreement in which they have specifically agreed to allow or prohibit the relocation, the court will presume that the provision in the agreement or parenting plan is in the child’s best interests. The court will honor the written agreement or parenting plan unless the parent seeking to deviate from the agreement or parenting plan presents evidence which convinces the judge that the provision in the agreement or parenting plan is no longer in the child’s best interests. Under certain conditions, temporary relocation pending a court hearing may be allowed.
At the court hearing to determine whether relocation of the children should be permitted, the parent seeking to relocate the children has the burden to prove that relocation is in the children’s best interests. The court is required to consider all relevant factors, including the specific factors listed in A.R.S. Sec. 25-408 I.
It is usually difficult for the parent seeking to relocate to show that the children will be better off living away from one parent than they would be living near both parents. In my experience, therefore, the parent opposing relocation is statistically more likely to win the case than the parent seeking to relocate with the children. If the parent planning to relocate does, in fact, relocate (whether or not the court approves her relocating with the children), the court will generally need to fashion new parenting time orders to accommodate the long-distance relationship.
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