AZ Custody Statute Bars Mother’s Request for Relocation Modification

AZ Custody Statute Bars Mother’s Request for Relocation Modification

Arizona child custody modification case summary.

Kamen Rae Murray v. Sean Noel Patrick Murray

In this Arizona child custody modification case, the divorced parents had a recently-modified parenting time order. Only one month under the modified order, the mother proposed a move-away to Nevada. She intended to remarry and permanently relocate with the children. The father objected to relocation and filed a motion to stop her from removing the children from the State of Arizona.

Waiting Period Delays Request for Modified Custody Orders

The main issue in the case required interpretation of the statutory waiting period for regular custody modifications. A parent must wait a year before requesting a change of legal decision-making or parenting time. But does the same waiting period apply when seeking to relocate the child out-of-state? That is, does Arizona’s statutory one-year waiting period on custody modifications also constrain a parent’s relocation plan which may substantially affect parenting time or legal decision-making?

The court answered that question affirmatively. Yes, the one-year waiting period applies to any change of custody orders. To initial decrees, to post-decree modification orders and, as in this case, to relocation requests with the other parent contesting the move-away.

Two Arizona Statutes Restrict Custody Modification

The court brought two Arizona family law statutes into alignment. The first being ARS § 25-408 which is the child relocation statute. The second being ARS § 25-411 which sets the one-year waiting period for custody modification requests.

No Exception Applies to Allow Early Modification

There are exceptions to the rule that the soonest a custody order can be modified is 12 full months after being entered. Those exceptions directly relate to the child’s welfare, such as domestic violence or other risk to the “physical, mental, moral or emotional health” of the child. However, no exception applied to the circumstances in this case.

Divorce, Child Custody Orders, and Modified Parenting Plan

These are the basic circumstances the parents faced. They were divorced in 2009 and awarded joint custody of their minor children. In January 2014, the court entered an order modifying parenting time. The only change was an increase in the father’s parenting time. Joint legal decision-making would continue, but his parenting time was increased to six days every two weeks.

The following month, the father learned of his ex-wife’s plans to remarry and move to Nebraska with the children. He petitioned the Superior Court in Yavapai County to prevent the move-away. In an August 2014 hearing, the judge granted father’s motion and ruled against mother’s taking the children to Nebraska. The mother’s appeal was unsuccessful.

The appellate court determined the scope of ARS § 25-411(A). That statute bars a parent from requesting custody modification when less than a year has passed from the issuance of the current decree or order. In this case, the current order was entered in January 2014. In asking the court to allow her to relocate the children, the mother effectively sought modification before the one-year statutory waiting period had expired.

Analysis of Relocation as Substantial Change

When a proposed relocation could cause substantial change to parenting time or legal decision-making, the court must make detailed factual findings. The same process is required to establish custody (see ARS § 25-403). Furthermore, Arizona law is clear in that “a parent must wait a year after a [custody] modification … to seek an order approving a contested relocation that would implicate a further change in decision-making or parenting time.”

As an aside, perhaps if a parent’s move was only 25 miles from Phoenix, within Arizona, then relocation might not substantially implicate a change of legal decision-making or parenting time. In this case, though, the mother’s proposed move to Nevada was both substantial in distance and territory. Relocating the children out-of-state would impact the father’s parenting time and, very possibly, his right to legal decision-making authority. Discussing relocation as a modification, the court stated that:

“A parent ordinarily may not ask to change parenting time or legal decision-making within a year after a modification order; the same constraint applies when a parent seeks relocation that necessarily will involve a change in parenting time or legal decision-making.”

The Court of Appeals affirmed the trial court’s ruling. The one-year waiting period began with the January 2014 parenting time modification. And the waiting period applied to the mother’s proposed relocation request.

The move-away would have required a change of parenting time arrangements, those just recently modified in January 2014. Because parents may not seek a change of parenting time or legal decision-making authority within a year after the modification order (absent exception), the mother is constrained from seeking relocation that necessarily would change the status quo. Relocation would interfere with the father’s parenting time and no exception applied.

Murray v. Murray, 1 CA-CV 15-0170 FC (February 4, 2016)

For precise language, read the court’s original opinion. Legal citations omitted.

To learn more, see our discussion on Child Relocation and Move-Aways.