Introduction to Leaving the State with Minor Children: Temporary and Permanent Trips
It is not uncommon for people to want to move, either within a city or even out of state. There are dozens of reasons why a person or a family would want to move; work, school, family, military, or any number of other reasons. For most, moving for any of these reasons does not pose any additional concerns other than the move itself. That is not the case for families who share custody of their minor children with another parent. Parents who share custody, or as Arizona calls it: parenting time, run into a number of obstacles when it comes to just leaving the state for a vacation. Moving out of state is an entirely different process. The Court requires different procedures for a parent taking the minor children from the state on a temporary basis versus a permanent basis.
Temporary Out of State Trips with Minor Children
As a rule of thumb, if parties agree upon virtually anything (legal), then the Courts do not need to get involved with the decision making process. If the parties are arguing in any way, and there is a court order or decree in place, the parties will default to what the court order or decree says. So, if the parties agree that one parent can take the minor children from Arizona to California or Florida for a Disney vacation, then there is no need for the Court to get involved. If, on the other hand, one parent declines to allow the other parent to engage in this trip, the Court will need to get involved.
The first thing the Court will review to see if the parties share joint legal decision making or if one party has sole legal decision making. Joint legal decision making is the legal custody of the minor children that focuses on the decision making process for those minor children.[i] These decisions include major life choices about the minor children’s upbringing such as the children’s schooling, religious upbringings, and medical care.[ii] The majority of states, including Arizona, will grant joint legal decision unless there is substantial domestic violence or substance abuse concerns. Sole legal decision making will be granted if the Court does determine that there is substantial domestic violence or substance abuse concerns. Parties that share joint legal decision making have to discuss all decisions about the minor children, and travel plans are included in those decisions. Parties that have sole legal decision making can make those temporary travel plans without approval of the other party or court intervention.
If the parties with joint legal decision making cannot come to a decision about temporary travel plans, the requesting party can file a petition with the Court for the Court to hear the arguments of both parties and come to a decision for the parties. Many courts will require that the parents go through conciliation services or mediation before asking the Court to hear the issue. Conciliation services and mediation will attempt to resolve the problem by talking through the discuss with each party and finding a way to compromise with each party. If that fails, the judge will then need to make the decision for the requesting party.
Before making his or her decision, the judge will look at the following steps that the requesting party needs to have made before filing a petition with the court for review. First, the requesting party needs to have made the request in writing at least forty five days before the scheduled trip.[iii] This request in writing must be made if one parent wants to take the minor children out of the state or more than 100 miles within the state.[iv] The written notice must be made by certified mail, return receipt requested, or pursuant to the Arizona Rules of Family Law Procedure.[v] The Court will sanction a party for not complying with these requirements.[vi] This could later affect that party’s right to joint legal decision making and even parenting time.[vii] The Court will then hear the arguments for and against the minor children leaving the state, or traveling 100 miles within the state, and make a decision as to the travel plans.
Permanent Relocation of the Minor Children
Just as previously stated, if parties can agree to a major decision then the Court does not need to get involved. This is true if one parent wants to move out of state and wants to create what is known as a long distance parenting plan. The parenting plan is just as it sounds – in place to accommodate that one parent will not see the children as frequently because the other parent has moved out of state. This type of parenting plan will typically allow for the parent living away from the children to have the minor children on breaks and for a substantial part of the summer. Depending on finances, some parties will be able to travel and see the minor children once a month, or even more depending on the circumstances.
Moving happens, for all kinds of reasons, and sometimes it is in the best interest of the children to move. While some parents can agree that one parent moving with the minor children is the best decision, many parents cannot agree. This is when the Court will need to get involved. Just as the requirements dictate for temporary relocation of the children, the moving parent must provide written notice to the other parent. Now, the nonmoving parent may petition the court to prevent this move within thirty days after notice of the move has been made to them.[viii] The moving parent can also petition the court for a hearing if they know that the other parent will object to the move. The judge will then hear the arguments of both sides and determine the appropriateness of relocation of the minor children.[ix] The Judge will consider how this move will affect the other parent’s legal decision making or their parenting time. The moving parent has the burden to show the court why the move is in the best interest of the children. It is important that the moving parent focus on the minor children, rather than themselves them making this argument. Just because a parent is offered a job in another state does not mean that is what is best for the children. Now, if that parent does not have a job and is unable to care for the children – but this move would allow that parent to better care for the children, that could be grounds for relocation.
Conclusion to Leaving the State with Minor Children: Temporary and Permanent Trips
Moving is a natural part of life, but it is not always an easy process. For parents who share custody of their minor children, the parties either need to agree to a move or ask for the Court’s permission. If the moving party cannot gain approval from the nonmoving party or make a good argument as to why the move is in the best interest of the minor children, they may be stuck in the same state until the minor children are 18 years old.
[i] See The Different Types of Child Custody NOLO Legal Encyclopedia http://www.nolo.com/legal-encyclopedia/types-of-child-custody-29667.html
[iii] See Arizona Revised Statutes 25-408 Rights of Each Parent; parenting time; relocation of a child; exception; enforcement; access to prescription medication and records http://www.azleg.gov/ars/25/00408.htm