According to data from the National Association of Realtors, 8.95 million people have moved during the pandemic. And one thing is for certain: With our economy and employment in flux, relocation is likely to continue to drive people to move in the next months. It’s a big change for anyone, but its effects are even more complex for divorced parents and their children.
It’s important to understand how relocation affects child custody—whether from the perspective of a parent who is leaving or the parent who wants to stay put.
Law Requires Notice Before Permanent Relocation
If parents have joint legal decision-making authority or shared parenting time with the child, Arizona law sets out procedures and standards for determining if a parent can relocate with a child more than 100 miles away from their current home or move outside of the state.
First, unless there is a current, existing court order approving the move, or a written agreement between the parents, the relocating parent must give the other parent notice of the proposed move at least 45 days before the relocation.
If the other parent objects to the move, they have 30 days after receiving the notice to file a petition requesting that the court issue an injunction that prohibits the child’s relocation. If the objecting parent misses the 30-day window, they usually have waived their right to object.
Provisions for Temporary Relocation
While a formal decision regarding the relocation is pending, a parent may temporarily relocate with a child, even without the 45-day notice, if the following requirements are met:
- If the parents share both legal decision-making and parenting time, and the other parent gives written approval for a temporary move that is due to the health, safety, employment, or eviction of that parent or that parent’s spouse.
- If a parent has sole legal decision-making authority over a child, or that parent has joint legal decision-making authority, and they provide the child’s primary residence, then that parent can temporarily relocate if the move is due to the health, safety, employment, or eviction of that parent or that parent’s spouse.
Permanent Determination is Based on “Best Interests of the Child”
When deciding whether or not to allow the child to be permanently relocated, the court uses the same standard for other child custody issues: What is in the child’s best interest?
Arizona statute requires that the court should therefore consider such factors as:
- The child’s past, current, and future relationship with the parents
- The child’s relationship to siblings and others
- The mental and physical health of everyone involved
- The child’s preferences, if the child is old enough
- If there are any negative factors such as a history of domestic violence or drug abuse in the family
Then, in addition to those commonly used factors, the law requires examination of issues that directly relate to the relocation. The court must also look at:
- Whether the relocation is being made (or opposed) in good faith or if it was motivated by
- A parent’s desire to interfere with or to frustrate the other’s access to the child
- A parent’s desire to interfere with or to frustrate the other’s relationship with the child
- A parent’s desire to gain a financial advantage regarding child support obligations
- Whether the move improves the custodial parent’s or child’s quality of life
- Whether the custodial parent will comply with parenting time orders after the relocation
- Whether the relocation realistically allows both parents to have parenting time
- Whether moving or not moving will affect the child’s emotional, physical, or developmental needs
- Whether the relocation could have a harmful impact on the child’s stability.
Unlike in other states, Arizona does not require judges to consider the impact a temporary relocation may have already had on the child. But the temporary move could come up in the analysis of the statutory requirements.
Relocation and a Parenting Plan
There is one crucial consideration that parents must not forget when addressing a relocation: Even a permanent court decision granting a child’s relocation does not automatically change anything else in a court-approved parenting plan.
Relocation does not absolve any parent of their existing responsibilities under the parenting plan—not the allocation of parenting time and legal decision-making authority, the child’s financial support, nor the other negotiated details.
Parents may think that this sounds preposterous—particularly if the reason for the move was a change in financial circumstances. But again, according to the statute, the relocation must be in the child’s best interests. Since the parenting plan was already approved as being in the child’s best interests, the presumption is that the rest of the plan still is just that—what’s best. Therefore, the parenting plan stays intact until the court has concluded that it is no longer aids the child’s wellbeing and requires a change.
Thus practically speaking, parents need to expect that working out a new parenting plan should be part-and-parcel to any thoughts given to relocation—whether achieved through a parental agreement or court litigation.
Aarti Bhaga is a family law and divorce attorney working in Stewart Law Group’s Gilbert Office. The firm has helped many clients with divorce, child custody, spousal support, property division, parental visitation, and child relocation disputes.
