Can I modify an Arizona Divorce Judgment?
Life changes after an Arizona divorce, and sometimes those changes make an existing divorce judgment unfair or impractical. Fortunately, it is possible to get a post-judgment modification under certain circumstances.
The simplest of these is if you and your ex-spouse agree that something in your judgment should change. A very common example is parenting time, as parents’ and children’s schedules may change and a new parenting time schedule may work better for everyone. If you and your ex-spouse can agree on a modification of your divorce judgment, you can submit your proposed modification to the court and the judge will likely order the change you request.
If you and your ex-spouse disagree on the need for a modification, the party who seeks the change will have to file a motion with the court and demonstrate a significant change in circumstances, especially with regard to child custody and parenting time. This is necessary in order to provide stability for Arizona children whose parents are divorced, so that their living situation is not constantly changing. Child support can also be modified post-judgment according to the Arizona Child Support Guidelines. If custody or parenting time changes significantly, a change in child support is probably also warranted and appropriate.
Can I Move Away (relocate) with My Kids After Divorce?
The short answer is, “Maybe.” Relocation requests involve moves that are out of the city where the child currently resides and often is a request to relocate the children out of the state. Arizona keeps the children’s best interest in mind and we value having strong relationships with both parents, and when one parent wants to move away with the children after divorce, maintaining those relationships can be difficult. This is a particularly complicated area of Arizona family law, and the law is constantly evolving. It is best to consult a family law attorney who is well-versed in the law of custody and parenting time so that they can advise how current law applies to your specific set of facts.
In general, if one parent has more parenting time or primary physical custody of the children, that parent has the right to move away with the children, unless the parent who is opposing the move can show the court that the move would not be in the children’s best interests or would be detrimental to the children. However, if parents share joint physical custody, the parties both must argue what they believe to be in the children’s best interests.
In such a situation, the court is faced with determining which parent should now be granted primary physical custody as one parent is moving. These cases rely very heavily on the actual facts and circumstances surrounding the parenting of the children.
Arizona Revised Statute § 25-408 sets forth the factors pertaining specifically to a relocation and also incorporates by reference the best interest factors from Arizona Revised Statute § 25-403. According to Arizona Revised Statute § 25-408(G), the moving party has the burden of proving, by a preponderance of the evidence, what is in the children’s best interests. In addition, to the extent possible, the court must also make appropriate arrangements to ensure the continuation of a meaningful relationship between the children and both parents.
In determining the children’s best interests, the Court must consider all relevant factors, including the following:
- The wishes of the children’s parent or parents as to custody.
- The wishes of the children as to the custodian.
- The interaction and interrelationship of the children with the children’s parent or parents, the children’s siblings and any other person who may significantly affect the children’s best interest.
- The children’s adjustment to home, school and community.
- The mental and physical health of all individuals involved
- Which parent is more likely to allow the children frequent and meaningful 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 children from witnessing an act of domestic violence or being a victim of domestic violence or children abuse.
- Whether one parent, both parents or neither parent has provided primary care of the children.
- The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding custody.
- Whether a parent has complied with chapter 3, article 5 of this title.
- Whether either parent was convicted of an act of false reporting of children abuse or neglect under section 13-2907.02.
- Whether there has been domestic violence or children abuse as defined in section 25-403.03.
- Whether the relocation is being made or opposed in good faith and not to interfere with or to frustrate the relationship between the children and the other parent or the other parent’s right of access to the children.
- The prospective advantage of the move for improving the general quality of life for the custodial parent or for the children.
- The likelihood that the parent with whom the children will reside after the relocation will comply with parenting time orders.
- Whether the relocation will allow a realistic opportunity for parenting time with each parent.
- The extent to which moving or not moving will affect the emotional, physical or developmental needs of the children.
- 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 children support obligations.
- The potential effect of relocation on the children’s stability.
These cases rarely resolve themselves and typically end up in court at a contested hearing. At a hearing on the issue, If the parent opposing the move can provide sufficient evidence that the move would be harmful, the judge can order that the children remain here with the parent who is not relocating and make orders for visitation with the relocating parent.
At the evidentiary hearing on relocation cases, the judge would receive testimony and evidence regarding whether the move would be in the best interests of the child, or whether the parent arguing against the relocation can provide the court with enough evidence to show that the move would be detrimental to the children. These cases are very difficult for the parents, and for the courts. Regardless of the court’s ultimate orders, the children’s lives will be altered, and they will not maintain the same relationship they were able to prior to a parent moving.