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If I have a written custody agreement can I move my child out of the State of Arizona with me?

The simple answer to this question is yes, if certain specific requirements are met. Arizona Revised Statutes 25-408 deals with the rights of a noncustodial parent; parenting time; and relocation of a child.

In particular, 25-408 (B) states in pertinent text:

[i]f by written agreement or court order both parents are entitled to custody or parenting time and both parents reside in the state, at least sixty days' advance written notice shall be provided to the other parent before a parent may do either of the following:

  1. Relocate the child outside the state.

  2. Relocate the child more than one hundred miles within the state.

To comply with these requirement, a party seeking to relocate shall deliver written notice of such intent to the noncustodial parent by certified mail, return receipt requested, or pursuant to the Arizona Rules of Family Law Procedure (ARFLP). It is important to keep documentation demonstrating the noncustodial parent received and signed for the certified written notice. A party may be sanctioned by the court if it is later determined that no notice was provided or if proof of such notice cannot be furnished.

Within thirty (30) days after signing for and receiving the written notice of intent to relocate, the noncustodial party may petition the court to prevent relocation of the child. However, to be safe, the court allows the party seeking relocation to petition the court for a hearing to determine and reinforce that the move is in the best interest of the minor child. Many moving parents wish to petition the court for a hearing so that a formal and enforceable court order can be put in place indicating that the move is lawful.

If neither parent requests a hearing within the thirty (30) day period listed above, then the party seeking to relocate, with a few minor exceptions, must still wait until expiration of the initial sixty (60) day period prior to moving.

However, if a party requests a hearing, then the party seeking to relocate must understand that there exists a rebuttable presumption that any written agreement(s) between the parents are in the child's best interest. To rebut this presumption, in efforts to determine what is truly in the child's best interest, the court will look to the following factors:

  1. The factors prescribed under section 25-403.

  2. 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.

  3. The prospective advantage of the move for improving the general quality of life for the custodial parent or for the child.

  4. The likelihood that the parent with whom the child will reside after the relocation will comply with parenting time orders.

  5. Whether the relocation will allow a realistic opportunity for parenting time with each parent.

  6. The extent to which moving or not moving will affect the emotional, physical or developmental needs of the child.

  7. 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.

  8. The potential effect of relocation on the child's stability.

For more information of this or other family law matters within Arizona, contact the experienced family law attorneys at the Phoenix based law firm of Ariano & Reppucci, PLLC

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