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If My Ex-Spouse and I Have Joint Custody, Can I Move the Child(ren) Out of State?

Most people who are going through a divorce assume they will be remaining in Arizona for a long time. After all, people from all over the country want to move to the sunshine, not escape from it. But things happen. You get a job transfer; you have to go take care of an ailing parent in another state; or your new spouse gets a chance to triple his or her income by accepting a dream job on the east coast.

But what happens when you need to relocate out of state but you have joint custody of the children? Can you just pack up the kids and go? What are the rules?
The fact of the matter is that even in a joint custody situation, it is not unusual for one parent to be primarily in charge of the children’s upbringing, i.e., doctor appointments, work on homework, making sure the children get to their activities. Your attorney may have told you that there was no downside to stipulating to joint custody. However, what happens if you are the primary parent and have a legitimate reason for leaving Arizona? Can you simply move the children to another state?

In most situations the answer is “no.” Moving the children will interrupt the other parent’s custody and parenting time rights, even if you are the primary parent. However, you do have options.

According to statute, where parents with joint custody both live within Arizona, the parent wishing to relocate the children out of state or to more than 100 miles within the state, must give the other parent at least forty-five days advance written notice by specific means. The other parent can file a petition within thirty days of receiving the notice to prevent the relocation. It is then up to the judge to decide.

Alternatively, if there is sufficient time before the move, a parent wishing to relocate the children may file a petition requesting authority for the relocation. This process provides a method for getting a ruling in advance. The last thing you want is to pack up all of your belongs, pay the movers, and then learn you can’t go. So if there is time, a petition may be beneficial.
But here is the problem. Simply because you are the primary parent does not necessarily mean the court will authorize the move. I was in court one day when a woman asked for permission to relocate her children to California because her new husband got a job with a significant increase in pay. The children’s father was not paying support and was not regular in exercising his parenting time. Nevertheless, the judge denied the request to move the children to California. The judge ruled that even though the mother had a legitimate reason for the move, the children would benefit financially from the move, and the father had basically shirked his duties, the move would be unfair to the deadbeat dad and would deprive him of his rights. Go figure.

The above may be an unusual case. It shows, however, that a request to relocate is not necessarily a slam dunk. While the court must decide the issue based on the best interest of the children, it is not always easy to predict what a judge will do.

Therefore, it often is wise to include a provision in a custody agreement that authorizes the parent who is primarily in charge of the children to relocate when the need arises. Such a provision may be very helpful if, due to unforeseen circumstances, you need to leave the state sooner than later. And since no one expects a move when the custody agreement is first entered, it may be easier to get your spouse to agree to a relocation cause before the need to move arises.

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