The parties in this case shared three children. During the divorce proceedings, the family court entered temporary orders that the children would reside primarily with the Mother and exercise visitation (now called parenting time) with the Father. After temporary orders were entered, Mother relocated from Alpine to Show Low, a distance of approximately 73 miles.
Approximately a year after the parties were divorced, Mother informed the family court that she intended to relocate from Show Low to Payson, a distance of approximately ninety miles. Father objected and argued that the move exceeded 100 miles from his home.
The family court rejected Father’s argument and ruled that A.R.S. § 25-408 requires the court to calculate the distance moved from the moving parent’s home. The court also declined Father’s request to use the combined mileage including Mother’s previous move.
Father moved for a new trial and that motion was denied. Father appealed.
Why mileage matters
Under A.R.S. § 25-408(A), a parent who wishes to relocate a child to another state or more than 100 miles within Arizona, generally must obtain the other parent’s consent or an order from the family court to allow the relocation.
The statute explains the notice requirements and the procedure for both the moving parent and the non-moving parent to file a petition to prevent relocation. In the event that the relocation is contested, the statute requires the family court to consider certain factors, in addition to the ordinary legal decision-making and parenting time factors under A.R.S. § 25-403, to determine whether the relocation is in this children’s best interests.
How mileage is measured
The Court of Appeals considered two different arguments. The first argument was that the distance of Mother’s first move (from Alpine to Show Low) should be combined with the second move (from Show Low to Payson).
The Court of Appeals rejected this argument. The version of the statute in effect at that time stated that the 100-mile condition did not apply if a provision for relocation was made by court order or written agreement dated within one year of the proposed relocation of the child. The exact timing of the orders in this case was unclear but the Court of Appeals found that this applied and that the family court approved Mother’s first move.
Father’s second argument was that the 100-miles distance should be calculated from his residence. Whenever a statute or rule is unclear or silent toward a particular issue, courts have to try to apply the statute or rule in a way that would effectuate the drafter’s intent. To do this, they often look at context in subsections of the statute or rule being interpreted or throughout other statutes or rules that may have common application.
Here, the Court of Appeals concluded that the goal of A.R.S. § 25-408 was to “balance … competing interests” between allowing each parent freedom to choose where they live with their child and protecting the other parent’s rights to parenting time and/or legal decision-making. With this goal in mind, the Court of Appeals determined that the 100 miles should be measured from the moving parent’s physical location and not the non-moving parent’s.
Conclusion
Contested custodial relocations can be complicated. When one parent has to relocate a significant distance away from the other parent, the family court necessarily has to make a difficult decisions that often will reduce one of the parent’s parenting time. To make matters worse, the statute itself, even in its current version, is still pretty unclear. Subsequent case law has attempted to reconcile some of the issues, but relocations can be among the most contentious cases in family court.
Given the extremely high stakes in these cases, we are very proud of our exceptional record in relocation cases. If you or your coparent are considering relocation, please contact us for a free initial consultation with one of our experienced child custody attorneys.