Father’s objection to mother’s relocation was rejected because her first move from Phoenix to Payson, Arizona, was court-approved and her current move from Payson to Lakeside, Arizona, was less than 100 miles. Father failed to prove material change in circumstances affected the children’s welfare sufficiently to warrant modified parenting time or legal decision-making authority.
Custodial Parent’s Relocation to Payson Was in Children’s Best Interests
The mother filed for divorce in November 2008. Both parents resided in Phoenix and temporary custody orders were entered. During their January 2009 resolution management conference, the mother informed the court of her intention to move with the children to Payson or possibly Heber and why. The court informed her that she could not move the children more than 100 miles from her current Phoenix address without the father’s agreement or court approval.
At trial on May 15, 2009, the parents were still unable to agree on relocation. Payson was approximately 95.23 miles from the mother’s current Phoenix address. The court pronounced the mother could relocate having determined the move to Payson was in the children’s best interests.
The May 29 divorce decree provided for joint legal decision-making and parenting time. The mother was granted primary physical custody; the father was awarded parenting time. The decree was silent on relocation. In early April, the mother filed a change of address reporting her move to Payson.
Relocation Again and Again
The mother relocated with the children to Mesa in October 2009 because of a high risk pregnancy. The following December, venue was changed to Gila County. Mother moved to Heber in August 2010. She relocated to Lakeside in 2012 and then petitioned for change of venue to Navajo County. The father objected and the court transferred venue back to Maricopa County.
In March 2013, father petitioned for modified custody. He amended two days before the hearing to challenge relocation. The evidentiary hearing was continued to March 2014.
After the hearing, the trial court denied custody modification and allowed mother’s relocation. On relocation: Because Lakeside is less than 100 miles from Payson, the relocation law of ARS § 25-408 was inapplicable. Mother’s move to Payson was authorized by the family court in its oral pronouncement from the bench (preserved on the record). On custody modification: Father failed to demonstrate a material change of circumstances affecting the children’s welfare. The mother was awarded her reasonable attorney’s fees and venue was changed to Navajo County. Father filed a timely appeal.
The Court of Appeals affirmed the decision below, holding there was no abuse of discretion and no error committed by the trial court.
How to Calculate Mileage Under Arizona Child Relocation Law
The trial court measured from Payson (2009) to Lakeside (2012) finding the distance to be under 100 miles, a distance insufficient to trigger Arizona’s relocation statute. Father argued the court should have measured the distance from Phoenix to Lakeside, which was over 100 miles. He claimed the mileage was sufficient to trigger the relocation statute.
Arizona’s relocation statute, ARS § 25-408, provides in part:
A. If by written agreement or court order both parents are entitled to joint legal decision-making or parenting time and both parents reside in the state, at least 45 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 100 miles within the state.
. . .
D. Subsection A of this section does not apply if provision for relocation of a child has been made by a court order or a written agreement of the parties that is dated within one year of the proposed relocation of the child.
[Note: The 2015 amendment was not material to this case.]
Citing Thompson v. Thompson, 217 Ariz. 524 (Ariz. Ct. App. 2008), the appeals court held that ARS § 25-408(A) does not apply if the first move was court-approved and the parent actually made the moved within one year of that approval. When § 25-408(D) renders (A) inapplicable, the court-authorized relocation miles are exempt from future mileage calculations under § 25-408(A). As in a later move-away.
Because the mother’s Phoenix-to-Payson move was authorized in 2009 and was accomplished within a year of authorization, that distance was properly exempted from further mileage calculations. The starting location for future mileage calculations is the mother’s Payson address. Thus, the trial court did not err in ruling that the distance from Payson-to-Lakeside was less than 100 miles and, therefore, the Arizona relocation statute was inapplicable.
Petition for Modification of Child Custody Orders
Father argued the trial court did not properly consider mother’s “divorce decree violations” and her relocations as evidence of material change of circumstances in support of his petition for modified custody orders. The Court of Appeals disagreed, noting the requirement of “material change in circumstances affecting the welfare of the child” to support modification of legal decision-making and parenting time orders. Citing Canty v. Canty, 178 Ariz. 443 (Ariz. Ct. App. 1994).
The trial court found father failed to demonstrate that material change occurred since the May 2009 custody orders were entered. Because the trial court is in the best position to judge witness credibility and resolve conflicting evidence, appellate courts “generally defer” to the lower court’s findings. The record revealed the trial court considered the evidence and the issues. It found the mother’s testimony and the testimony of her witnesses to be more persuasive than father’s testimony and the testimony of his witnesses. The record and findings below supported the trial court’s conclusions and denying modification was not in error.
Vincent v. Nelson, 1 CA-CV 14-0541-F (August 20, 2015)
For precise language, read the court’s original opinion. Legal citations omitted.
To learn more, read the discussion on child relocation in Arizona family law and how moving away can result in modified orders for legal decision-making authority, for parenting time, and for child support.