[NOTE added March 23, 2011: The bill that’s discussed in this post was pulled from the legislative agenda and is not proceeding, this session at least.]
Although a current national trend is for relocation statutes to provide no presumption either in favor of or against a relocation with a child [Elrod, National and International Momentum Builds for More Child Focus in Relocation Disputes, Fam. Law Quarterly Vol 44, No. 3, Fall 2010], Arizona’s proposed relocation bill forges ahead with a decided presumption against relocation.
The Elrod article notes that predicting the result of any relocation request has long been difficult or impossible, as each decision is so entirely fact-driven. Elrod then examines the recent trend that is abandoning a statutory presumption about relocation in favor of a “best interests of the child” test that requires each parent to show that his/ her position on a proposed relocation is in the child’s best interests.
Despite the national trend moving away from a statutory presumption, the Arizona bill, SB1083, would substantially increase the burden of proof on a parent who wishes to relocate with the child. The pending bill would abolish most relocation provisions of existing ARS 25-408, replacing those provisions with a presumption that the following criteria mean that the proposed move substantially or adversely impacts a current court-ordered parenting plan:
- A move which results in a change to the child’s school;
- A move which increases the travel time to such a degree that the child’s time with either parent will be decreased significantly; or
- A move which significantly impacts the child’s established routine in the child’s home, school or community.
The bill provides no definition for the word “significantly” or for the term “established routine”.
It would appear that SB1083, if passed in its current form, will create relocation petitions for moves which are substantially shorter than the existing “100-mile rule”. A proposed move from Mesa to Surprise would undoubtedly result in a change of the child’s school, would impact travel time, and would, arguably, “impact the child’s established routine” (although I have no idea what that phrase is intended to mean).
This bill would also modify the factors the court must consider in determining the child’s best interests, as follows:
- removes the requirement for the court to consider the motives of the parents and the validity of the reasons given for moving or opposing the move, and instead requires the court to consider whether the parent’s primary motive in requesting or opposing relocation is to gain a financial advantage related to child support;
- removes the requirement for the court to consider whether the relocation is being made or opposed to interfere with or to frustrate the relationship between the child and the other parent or the other parent’s right of access to the child, but maintains the requirement to consider whether the relocation is being made or opposed in good faith;
- removes the requirement for the court to consider the prospective advantage of the move for improving the quality of life for the custodial parent.
A statutory presumption in favor of the move is imposed if both of the following apply: the moving parent has primary physical custody and the exclusive right to make educational decisions for the child, and the change in residence would allow for reasonable and meaningful access that is not significantly less than provided under the existing parenting plan.