NOTE: EVERYTHING WRITTEN BELOW IS FOR INFORMATIONAL PURPOSES ONLY. IT IS NOT LEGAL ADVICE AND DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. READING A BLOG IS NO SUBSTITUTE FOR CONSULTING WITH AN ATTORNEY.
You are divorced and have children with your former spouse, or you were never married and have children with a former significant other. One day, the other parent announces that he or she will be moving your children to another state, making it much more difficult or impossible to see your children as often as you do now. What should you do?
Although the answer depends on your legal situation, each answer begins the same way: talk to the other parent. Some parents communicate better than others, but it does not hurt to try no matter how hostile the other parent behaves. If you emphasize not only what the move will mean to you but what it will mean to the children, you may make some headway. If the children are older, it may be easier to convince the other party to not attempt to move the children because older children often do not wish to leave their friends, school, community, and routine. You should also emphasize that children need regular contact with both parents. If you can get the other parent to realize that they would not only be taking the children from you, but taking you from the children, they may reconsider the move.
If you cannot convince the other parent to not move (my cynical side says WHEN you cannot convince the other parent), your next move depends on your situation. If you are the father, have never been married to the mother, and have never sought a court order regarding the children, you must act immediately. Children born out of wedlock in Arizona are in the sole custody and care of the mother - the father has no legal rights to the children. You should immediately file an action to establish paternity, legal decision making (custody), parenting time, and child support. You should also file a motion for temporary orders seeking an order for not only contact with the children, but also an order that the mother not move the children pending the outcome of the paternity case.
If you are the mother, have never been married to the father, and have no court orders regarding the children, the children are in your sole custody and care: the father cannot move the children without your consent. You should seek a court order anyway in order to establish paternity, a parenting plan, and child support, but your situation is not as urgent as it is for fathers in this situation.
If you are a married spouse and no one has filed for divorce or legal separation, either parent may move the children out of Arizona. However, once a spouse files for divorce or legal separation, the court issues an order that neither parent may move the children out of Arizona without a court order or the written consent of the other parent. Therefore, you can stop the move by immediately filing for divorce or legal separation.
Finally, the situation that most people facing the other parent who wants to move the children are in: you are divorced or never married and there is an order in place regarding the children. Under Arizona law, a parent may not move the children out of Arizona or more than 100 miles within the state after first giving 60 days written notice (mailed return receipt requested) or getting a court order or getting the written permission of the other parent if either of the following is true: the other parent has joint legal decision making (joint custody) or the other parent has parenting time (even if the moving parent has sole legal decision making). If you receive 60 days written notice of the proposed move, immediately file a petition with the court objecting to the move. The reason for the 60 days written notice is so that the non-moving parent can initiate an action in court opposing the move. If the other parent moves anyway, immediately call the police to make a complaint for custodial interference and file an enforcement and contempt action seeking the immediate return of the child to Arizona. Several years ago I had a client who ignored this advice and moved her child out of state. She regretted it.
I understand that in most states the parent who has custody or the parent with whom the children primarily live usually has an easy time getting a court order allowing a move out of state. In Arizona, however, it has been much more difficult. The trend seems to be that the parent wanting to move the children must demonstrate a compelling reason to do so. Also, the involvement and quality of the non-moving parent usually plays a major role in the judge's decision. For example, a parent who rarely exercises parenting time and who is an alcoholic will make it much easier for the other parent to move than a parent who exercises equal parenting time and has no substance abuse issues.
The statute governing this issue is A. R. S. Section 25-408, which sets forth the factors that the court must consider in deciding this issue. The burden of proof is on the parent proposing the move to show that relocating outside the State of Arizona is in the child's best interest. In determining the child's best interest the court shall consider all relevant factors including the following factors:
1. 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.
2. The prospective advantage of the move for improving the general quality of life for the custodial parent or for the child.
3. The likelihood that the parent with whom the child will reside after the relocation will comply with parenting time orders.
4. Whether the relocation will allow a realistic opportunity for parenting time with each parent.
5. The extent to which moving or not moving will affect the emotional, physical or developmental needs of the child.
6. 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.
7. The potential effect of relocation on the child's stability.
8. The past, present and potential future relationship between the parent and the child.
9. 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.
10. The child's adjustment to home, school and community.
11. If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time.
12. The mental and physical health of all individuals involved.
13. Which parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent. This paragraph does not apply if the court determines that a parent is acting in good faith to protect the child from witnessing an act of domestic violence or being a victim of domestic violence or child abuse.
14. Whether one parent intentionally misled the court to cause an unnecessary delay, to increase the cost of litigation or to persuade the court to give a legal decision-making or a parenting time preference to that parent.
15. Whether there has been domestic violence or child abuse.
16. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time.
17. Whether a parent has complied with the requirement to take the parent information program class.
18. Whether either parent was convicted of an act of false reporting of child abuse or neglect.
Often, an attorney with experience with this issue can really help. Whether you talk to me or talk to another attorney, talk to an experienced family law attorney. Good luck!
I accept occasional pro bono cases from The Children's Law Center. Recently, The Children's Law Center began offering free classes on child abuse and substance abuse in the context of acting as a family court advisor. I took advantage of them because I would get credit with the state bar for my continuing legal education requirements. Naturally, they asked me to accept an appointment as a family court advisor and I agreed.
A family court advisor is a mental health professional or a family law attorney who investigates a family court case and makes an assessment and a recommendation to the judge regarding legal decision making (custody) and parenting time (visitation). The judge makes the actual determination.
The family court advisor will usually interview both parents, interview children that are old enough for an interview, interview anyone else with relevant information (particularly anyone who lives with either parent), visit each parent's home, and review relevant documents, such as court records, school records, day care records, and medical records. After the family court advisor has gathered all necessary information, he or she writes a report analyzing the information in light of the relevant statutes. At the end of the report, the family court advisor should make an assessment and a recommendation to the judge on legal decision making/custody and parenting time/visitation. Sometimes, the advisor avoids making any specific recommendations, which can be very frustrating to the parties, attorneys, and, I expect, the judge.
In my case, I spent about 40 hours gathering information and writing my report. I interviewed both parents and the child. I also visited both parents' homes and reviewed about 900 pages of documents. I made about 15 pages of hand-written notes and wrote a report 18 pages long, single-spaced. In my particular case, neither party had an attorney and, as I watched the trial, it became apparent that neither parent was going to present any detailed information on the most important factual issues because neither parent really knew how to go about presenting evidence. This is when I realized that I had for sure not wasted my time in writing such a detailed report. The only reason why a lot of relevant information got to the judge was because he had the foresight to appoint a family court advisor.
I enjoyed going to court today and answering the judge's questions, especially because the judge seemed to appreciate my efforts. I am also glad that the judge had me testify last. I had began to wonder if I had wasted my time, but after listening to the other evidence I decided that I had spent my time well. I look forward to reading the judge's decision and learning whether he adopted all or most of my recommendations, or whether he adopted my report as the court's findings.
Judge Michael Haas retired in December, 2002 after 26 years of service as a Judge in Cass County, Minnesota. There are different stories on the origin of his now famous (at least in family law circles) words to divorcing parents. The one constant in the stories is that they all attribute the words to Judge Michael Haas of Minnesota. As an experienced family law attorney who has handled hundreds of custody and parenting time cases, I absolutely love the following words attributed to Judge Haas:
“Your children have come into this world because of the two of you. Perhaps you two made lousy choices as to whom you decided to be the other parent. If so, that is YOUR problem and YOUR fault.
“No matter what you think of the other party – or what your family thinks of the other party – these children are one-half of each of you. Remember that, because every time you tell your child what an ‘idiot’ his father is, or what a ‘fool’ his mother is, or how bad the absent parent is, or what terrible things that person has done, you are telling the child half of HIM is bad.
“That is an unforgivable thing to do to a child. That is not love! That is possession. If you do that to your children, you will destroy them as surely as if you had cut them into pieces, because that is what you are doing to their emotions.
“I sincerely hope that you do not do that to your children. Think more about your children and less about yourselves, and make yours a selfless kind of love, not foolish or selfish, or your children will suffer.”
I have often heard judges on the family court bench in Maricopa County paraphrase Judge Haas.
Hopefully parents remember these profound words as they consider how to proceed with what no doubt is a very difficult time in their and their child’s lives.
Many divorcing or recently divorced parents buy extravagant gifts for their children. Often, it appears that the parent is doing so out of guilt over the divorce process or is either consciously or unconsciously attempting to buy the child's love. Worse, some parents try to buy the child as an ally against the other parent. None of these gifts are really what the children need, and they rarely accomplish the goal.
Children need gifts during and after their parents' divorce, but not the sort that comes in packaging. First, give them the gift of considering their needs first. Many parents get so focused on fighting the other parent or punishing the other parent (although very few of them actually think that they are doing these things) that they do not truly consider what is best for the children. Arizona law and Arizona judges focus on what is best for the children, not what is best for the parents. The two most qualified people in the world to make a decision on what is best for a child is the child's parents. If those two experts cannot agree, then a judge, who does not know the parents or children, and who is essentially a stranger in a black robe, will listen to about three hours of evidence and try to make a decision in the best interests of the children. Obviously, the parents are in a better position to make that decision, IF they truly focus on what is best for the children.
Second, the children need the gift of their parents' silence about the divorce process. Does anyone really think that talking to the children about the legal wrangling and, worse, criticizing the other parent are good for the children? Many parents just want to vent to their children, or think that they are just keeping their children informed. A few parents want to influence their children against the other parent. However, all of these parents are involving their children in the divorce process and positioning them between the two parents. This is not only not good for the children, but can often be emotionally destructive to them. The only things that a divorcing parent should say to the children about the other parent are good things. The children are a part of the other parent and should see the other parent for the kind of parent he or she is and is going to be, not as the spouse that he or she was during the marriage. Finally, badmouthing the other parent often backfires, not only when the judge hears about it at trial, but years or decades later, when the children mature and realize what happened.
Third, the children need the gift of a home. With the back-and-forth of a parenting plan (aka visitation schedule), they need each parent's home to also be their home. Children often feel displaced when at one or both parents' homes, so parents may want to make sure that their current home feels just as much like a home as the former marital home felt for the children.
Finally, a gift to give the children is the gift of not letting them see you dating, at least for a while. The children have just gone through what may be the biggest and most traumatic experience of their childhood. Witnessing one or both parents getting romantic with someone who is not the other parent is another big adjustment. More importantly, most people are very emotional during a divorce and the time immediately following it. When emotions are high, people tend to exercise bad judgment. No one should exercise bad judgment in deciding what person they will bring around their children, especially if that person may be spending a lot of time around them. The time that the children are with the other parent is a good time to date for people who feel that they must do so.
Many people shower their children with gifts during and after a divorce. However, the most important gifts for children during such a difficult time are gifts like the gifts that I discussed here. If you are going through a divorce or are thinking of starting a divorce, I am here for a consultation. I am a Phoenix divorce and family law attorney serving the Phoenix, Arizona area.
Thomas A. Morton, P. L. L. C.
2916 N. 7th Avenue, Suite 100
Phoenix, Arizona 85013
If you have a legal issue but aren't sure how to handle it, call Thomas A. Morton, Attorney.
If you've got a problem, let's work together and determine how to help you!
All information on this website is not, and is not intended to be, legal advice. You should consult an attorney for advice regarding your individual situation, as each case is different and contains different facts. I invite you to contact me and welcome your calls, letters and e-mail. Contacting me does not create an attorney-client relationship. Please do not send any confidential information until you establish an attorney-client relationship with me.
Attorney Thomas A. Morton is located in Phoenix, Arizona, and serves clients throughout Maricopa County, including Tempe, Mesa, Scottsdale, Glendale, Peoria, Gilbert, Chandler, Goodyear, Surprise, Avondale, Cave Creek, Carefree, New River, Anthem, Black Canyon City, Sun City, Laveen, Buckeye, Goodyear, Litchfield Park, Tolleson, Youngtown, Queen Creek, Guadalupe, Fountain Hills, Paradise Valley, Wickenberg, Apache Junction, and El Mirage.