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PREFILED
JAN 08 2014
REFERENCE TITLE: parenting time; child relocation

State of Arizona
Senate
Fifty-first Legislature
Second Regular Session
2014

SB 1038
Introduced by
Senator Barto

AN ACT
AMENDING SECTIONS 25-401 AND 25-403.02, ARIZONA REVISED STATUTES; REPEALING
SECTION 25-408, ARIZONA REVISED STATUTES; AMENDING TITLE 25, CHAPTER 4,
ARTICLE 1, ARIZONA REVISED STATUTES, BY ADDING A NEW SECTION 25-408; AMENDING
SECTION 25-411, ARIZONA REVISED STATUTES; RELATING TO CHILD CUSTODY.

(TEXT OF BILL BEGINS ON NEXT PAGE)

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Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 25-401, Arizona Revised Statutes, is amended to
read:
25-401. Definitions
In this chapter, unless the context otherwise requires:
1. "In loco parentis" means a person who has been treated as a parent
by a child and who has formed a meaningful parental relationship with a child
for a substantial period of time.
2. "Joint
legal
decision-making"
means
both
parents
share
decision-making and neither parent's rights or responsibilities are superior
except with respect to specified decisions as set forth by the court or the
parents in the final judgment or order.
3. "Legal decision-making" means the legal right and responsibility to
make all nonemergency legal decisions for a child including those regarding
education, health care, religious training and personal care decisions. For
the purposes of interpreting or applying any international treaty, ANY
federal law, a uniform code or the statutes of other jurisdictions of the
United States, legal decision-making means legal custody.
4. "Legal parent" means a biological or adoptive parent whose parental
rights have not been terminated. Legal parent does not include a person
whose paternity has not been established pursuant to section 25-812 or
25-814.
5. "Parenting time" means the schedule of time during which each
parent has access to a child at specified times. Each parent during their
THAT PARENT'S scheduled parenting time is responsible for providing the child
with food, clothing and shelter and may make routine decisions concerning the
child's care.
6. "SIGNIFICANT IMPACT" MEANS A CHANGE IN RESIDENTIAL ADDRESS THAT MAY
RESULT IN A MATERIAL CHANGE OF CIRCUMSTANCES AFFECTING THE BEST INTERESTS OF
THE CHILD, INCLUDING A MOVE THAT RESULTS IN ANY OF THE FOLLOWING:
(a) A CHANGE TO THE SCHOOL THE CHILD WILL ATTEND AFTER THE MOVE,
UNLESS THE MOVING PARTY HAS SOLE LEGAL DECISION-MAKING AUTHORITY REGARDING
EDUCATION.
(b) A SIGNIFICANT DECREASE IN THE CHILD'S TIME WITH ANY PARTY BECAUSE
OF THE SIGNIFICANT INCREASE IN TRAVEL TIME.
(c) A SIGNIFICANT EFFECT ON THE CHILD'S ESTABLISHED ROUTINE IN THE
CHILD'S HOME, SCHOOL OR COMMUNITY.
(d) A CHANGE IN RESIDENTIAL ADDRESS TO A LOCATION OUTSIDE THIS STATE.
6. 7. "Sole legal decision-making" means one parent has the legal
right and responsibility to make major decisions for a child.
7. 8. "Visitation" means a schedule of time that occurs with a child
by someone other than a legal parent.

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Sec. 2.

Section 25-403.02, Arizona Revised Statutes, is amended to

read:
25-403.02. Parenting plans
A. If the child's parents cannot agree on a plan for legal
decision-making or parenting time, each parent must submit a proposed
parenting plan.
B. Consistent with the child's best interests in section 25-403 and
sections 25-403.03, 25-403.04 and 25-403.05, the court shall adopt a
parenting plan that provides for both parents to share legal decision-making
regarding their child and that maximizes their respective parenting time.
The court shall not prefer a parent's proposed plan because of the parent's
or child's gender.
C. Parenting plans shall include at least the following:
1. A designation of the legal decision-making as joint or sole as
defined in section 25-401.
2. Each parent's rights and responsibilities for the personal care of
the child and for decisions in areas such as education, health care and
religious training.
3. A practical schedule of parenting time for the child, including
holidays and school vacations.
4. A procedure for the exchanges of the child, including location and
responsibility for transportation.
5. A procedure by which proposed changes, INCLUDING CHANGES IN THE
CHILD'S RESIDENTIAL ADDRESS, disputes and alleged breaches may be mediated or
resolved, which may include the use of conciliation services or private
counseling.
6. A procedure for periodic review of the plan's terms by the parents.
7. A procedure for communicating with each other about the child,
including methods and frequency.
8. A statement that each party has read, understands and will abide by
the notification requirements of section 25-403.05, subsection B.
9. A STATEMENT THAT EACH PARTY HAS READ, UNDERSTANDS AND WILL ABIDE BY
THE RESIDENTIAL CHANGE OF ADDRESS REQUIREMENTS OF SECTION 25-408.
D. If the parents are unable to agree on any element to be included in
a parenting plan, the court shall determine that element. The court may
determine other factors that are necessary to promote and protect the
emotional and physical health of the child.
E. Shared legal decision-making does not necessarily mean equal
parenting time.
Sec. 3. Repeal
Section 25-408, Arizona Revised Statutes, is repealed.

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Sec. 4. Title 25, chapter 4, article 1, Arizona Revised Statutes, is
amended by adding a new section 25-408, to read:
25-408. Change in residential address of a child; notice
requirements; enforcement; presumptions
A. A PARTY WITH LEGAL DECISION-MAKING, PARENTING TIME OR VISITATION
MUST PROVIDE A NOTICE OF CHANGE OF RESIDENTIAL ADDRESS TO A PARTY WHO IS
ENTITLED TO COURT-ORDERED LEGAL DECISION-MAKING, PARENTING TIME OR VISITATION
AT LEAST FORTY-FIVE DAYS BEFORE THE CHANGE OF RESIDENTIAL ADDRESS IS TO
OCCUR. THE NOTICE SHALL INCLUDE ALL OF THE FOLLOWING:
1. THE EFFECTIVE DATE OF THE CHANGE OF RESIDENTIAL ADDRESS.
2. THE PROPOSED RESIDENTIAL ADDRESS UNLESS THE PROPOSED RESIDENTIAL
ADDRESS IS NOT KNOWN IN WHICH CASE THE NOTICE MUST INCLUDE AN EXPLANATION OF
THE REASON THAT THE RESIDENTIAL ADDRESS IS NOT KNOWN AND WHEN IT WILL BE
KNOWN.
3. THE SCHOOL THAT THE CHILD WILL ATTEND.
4. THE REASON THAT THE PARTY IS PROPOSING TO CHANGE THE PARTY’S
RESIDENTIAL ADDRESS.
5. A STATEMENT THAT INDICATES ONE OF THE FOLLOWING:
(a) THE CHANGE IN RESIDENTIAL ADDRESS CONTAINED IN THE NOTICE DOES NOT
REQUIRE MODIFICATION OF AN EXISTING COURT ORDER WITH RESPECT TO LEGAL
DECISION-MAKING, PARENTING TIME OR VISITATION.
(b) THE CHANGE IN RESIDENTIAL ADDRESS CONTAINED IN THE NOTICE REQUIRES
MODIFICATION OF A COURT ORDER WITH RESPECT TO LEGAL DECISION-MAKING,
PARENTING TIME OR VISITATION AND A PETITION TO MODIFY OR A STIPULATED ORDER
HAS BEEN FILED WITH THE COURT.
B. THE NOTICE REQUIRED BY THIS SECTION MUST BE MADE BY CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, BY RESTRICTED DELIVERY, PURSUANT TO THE ARIZONA
RULES OF FAMILY LAW PROCEDURE OR BY ANY OTHER METHOD THAT GIVES ACTUAL
WRITTEN NOTICE.
C. UNLESS OTHERWISE ORDERED BY THE COURT, THE NOTICE REQUIREMENT
PRESCRIBED BY SUBSECTION A OF THIS SECTION DOES NOT APPLY IF ANY OF THE
FOLLOWING IS TRUE:
1. THE COURT HAS GRANTED A REQUEST TO PROTECT A RESIDENTIAL ADDRESS
PURSUANT TO THE ARIZONA RULES OF FAMILY LAW PROCEDURE OR THE ARIZONA RULES OF
PROTECTIVE ORDER PROCEDURE.
2. THE ADDRESS IS PROTECTED PURSUANT TO SECTION 36-3009.
3. THE PARTY IS A PARTICIPANT IN THE ADDRESS CONFIDENTIALITY PROGRAM
PURSUANT TO TITLE 41, CHAPTER 1, ARTICLE 3.
D. A PARTY WHO IS EXEMPT FROM THE NOTICE REQUIREMENTS PURSUANT TO
SUBSECTION C OF THIS SECTION MUST STILL COMPLY WITH THE FILING REQUIREMENTS
OF SUBSECTION E OF THIS SECTION.
E. IF A PARTY'S CHANGE IN RESIDENTIAL ADDRESS WILL RESULT IN A
SIGNIFICANT IMPACT TO A COURT ORDER REGARDING LEGAL DECISION-MAKING,
PARENTING TIME OR VISITATION, THE PARTY SEEKING TO CHANGE RESIDENTIAL ADDRESS
MUST FILE AND SERVE, AT LEAST FORTY-FIVE DAYS BEFORE ANY CHANGE TO THE
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PARTY'S RESIDENTIAL ADDRESS, EITHER A PETITION FOR MODIFICATION PURSUANT TO
SECTION 25-411 OR A STIPULATED ORDER SIGNED BY ALL PARTIES THAT MEETS THE
REQUIREMENTS OF SECTION 25-403.02, SUBSECTION C. THE PETITION MUST INCLUDE
THE REASON THE PARTY IS PROPOSING TO CHANGE THE PARTY'S RESIDENTIAL ADDRESS.
F. A PARTY WHO IS REQUIRED TO RELOCATE IN FEWER THAN FORTY-FIVE DAYS
AFTER WRITTEN NOTICE HAS BEEN GIVEN TO THE OTHER PARTY BECAUSE OF
CIRCUMSTANCES RELATED TO HEALTH, SAFETY, EMPLOYMENT OR AN INVOLUNTARY CHANGE
OF RESIDENCE OF THAT PARTY OR OF THAT PARTY'S SPOUSE MAY TEMPORARILY MOVE
WITH THE CHILD IF ONE OF THE FOLLOWING APPLIES:
1. BOTH PARTIES EXECUTE A WRITTEN AGREEMENT.
2. THE PARTY OBTAINS A COURT ORDER PURSUANT TO THE ARIZONA RULES OF
FAMILY LAW PROCEDURE.
3. THE CHANGE IN RESIDENTIAL ADDRESS WILL NOT HAVE A SIGNIFICANT
IMPACT.
G. IF A CHANGE IN RESIDENTIAL ADDRESS WILL REQUIRE A CHANGE IN THE
PARENTING PLAN OR VISITATION, THE COURT, TO THE EXTENT PRACTICABLE, SHALL
ADJUST THE PARENTING PLAN OR VISITATION ARRANGEMENT TO MINIMIZE THE LOSS OF
LEGAL DECISION-MAKING, PARENTING TIME OR VISITATION FOR THE PARTY WHO IS NOT
CHANGING RESIDENTIAL ADDRESS.
H. PURSUANT TO SECTIONS 25-324 AND 25-415, THE COURT SHALL SANCTION A
PARTY WHO WITHOUT GOOD CAUSE DOES NOT COMPLY WITH THE REQUIREMENTS OF THIS
SECTION OR WHO WITHOUT GOOD CAUSE OPPOSES A CHANGE IN RESIDENTIAL ADDRESS.
I. THE COURT MAY IMPOSE A SANCTION THAT WILL AFFECT LEGAL
DECISION-MAKING, PARENTING TIME OR VISITATION ONLY IN ACCORDANCE WITH THE
CHILD'S BEST INTERESTS.
J. IF THE COURT FINDS THAT THE PARTY WHO IS CHANGING RESIDENTIAL
ADDRESS DID NOT FILE A PETITION TO MODIFY LEGAL DECISION-MAKING, PARENTING
TIME OR VISITATION PURSUANT TO SECTION 25-411 OR A STIPULATED ORDER SIGNED BY
ALL PARTIES THAT FULFILLS THE REQUIREMENTS OF SECTION 25-403.02, SUBSECTION
C, AND LACKED A GOOD FAITH BASIS FOR NOT FILING A PETITION TO MODIFY OR A
STIPULATED ORDER, THE COURT SHALL AWARD COSTS AND ATTORNEY FEES TO THE OTHER
PARTY.
K. THERE IS A REBUTTABLE PRESUMPTION THAT A CHANGE OF RESIDENTIAL
ADDRESS OF LESS THAN TWO MILES DOES NOT RESULT IN A SIGNIFICANT IMPACT ON
LEGAL DECISION-MAKING, PARENTING TIME OR VISITATION.
Sec. 5. Section 25-411, Arizona Revised Statutes, is amended to read:
25-411. Modification of legal decision-making or parenting
time; affidavit; contents; military families
A. A person shall not make FILE a motion to modify a legal
decision-making or parenting time decree earlier than one year after its
date, unless the court permits it to be made on the basis of affidavits that
there is reason to believe the child's present environment may seriously
endanger the child's physical, mental, moral or emotional health OR THE
MOTION IS FILED PURSUANT TO SECTION 25-408, SUBSECTION E RELATING TO A CHANGE
IN RESIDENTIAL ADDRESS.
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B. At any time after a joint legal decision-making order is entered, a
parent may petition the court for modification of the order on the basis of
evidence that domestic violence involving a violation of section 13-1201 or
13-1204, spousal abuse or child abuse occurred since the entry of the joint
legal decision-making order.
C. Six months after a joint legal decision-making order is entered, a
parent may petition the court for modification of the order based on the
failure of the other parent to comply with the provisions of the order. A
motion or petition to modify an order shall meet the requirements of this
section.
D. Except as otherwise provided in this section, if a parent is a
member of the United States armed forces, the court shall consider the terms
of that parent's military family care plan to determine what is in the
child's best interest during that parent's military deployment.
B. E. If the parent with whom the parent's child resides a majority
of the time receives temporary duty, deployment, activation or mobilization
orders from the United States military that involve moving a substantial
distance away from the parent's residence a court shall not enter a final
order modifying parental rights and responsibilities and parent-child contact
in an existing order until ninety days after the deployment ends, unless a
modification is agreed to by the deploying parent.
C. F. The court shall not consider a parent's absence caused by
deployment or mobilization or the potential for future deployment or
mobilization as the sole factor supporting a real, substantial and
unanticipated change in circumstances pursuant to this section.
D. G. On motion of a deploying or nondeploying, mobilizing or absent
military parent, the court, after a hearing, shall enter a temporary order
modifying parental rights and responsibilities or parent-child contact during
the period of deployment or mobilization if:
1. A military parent who has legal decision-making or parenting time
pursuant to an existing court order has received notice from military
leadership that the military parent will deploy or mobilize in the near
future.
2. The deployment or mobilization would have a material effect on the
military parent's ability to exercise parental rights and responsibilities or
parent-child contact.
E. H. On motion of a deploying parent, if reasonable advance notice
is given and good cause is shown, the court shall allow that parent to
present testimony and evidence by electronic means with respect to parenting
time or parent-child contact matters instituted pursuant to this section if
the deployment of that parent has a material effect on that parent's ability
to appear in person at a regularly scheduled hearing. For the purposes of
this subsection, "electronic means" includes communication by telephone or
video teleconference.

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F. I. The court shall hear motions for modification because of
deployment as expeditiously as possible.
G. J. If a military parent receives military temporary duty,
deployment, activation or mobilization orders that involve moving a
substantial distance away from the military parent's residence or that
otherwise have a material effect on the military parent's ability to exercise
parenting time, at the request of the military parent, for the duration of
the military parent's absence the court may delegate the military parent's
parenting time, or a portion of that time, to a child's family member,
including a stepparent, or to another person who is not the child's parent
but who has a close and substantial relationship to the minor child, if the
court determines that is in the child's best interest. The court shall not
allow the delegation of parenting time to a person who would be subject to
limitations on parenting time. The parties shall attempt to resolve disputes
regarding delegation of parenting time through the dispute resolution process
specified in their parenting plan, unless excused by the court for good cause
shown. A court order pursuant to this subsection does not establish separate
rights to parenting time for a person other than a parent.
H. K. All temporary modification orders pursuant to this section
shall include a specific transition schedule to facilitate a return to the
predeployment order within ten days after the deployment ends, taking into
consideration the child's best interests.
I. L. A decree or order that a court enters in contemplation of or
during the military deployment of a parent outside of the continental United
States shall specifically reference the deployment and include provisions
governing the legal decision-making or parenting time arrangements, or both,
of the minor child after the deployment ends.
Either parent may file a
petition with the court after the deployment ends to modify the decree or
order, in compliance with subsection L Q of this section. The court shall
hold a hearing or conference on the petition within thirty days after the
petition is filed.
M. IF THE PETITION FOR MODIFICATION IS FILED PURSUANT TO SECTION
25-408, SUBSECTION E, THE FOLLOWING APPLY:
1. THE
COURT
SHALL
DETERMINE
ANY
MODIFICATION
TO
LEGAL
DECISION-MAKING, PARENTING TIME OR VISITATION IN ACCORDANCE WITH THE BEST
INTERESTS OF THE CHILD. IN MAKING THIS DETERMINATION, THE COURT SHALL
CONSIDER ALL FACTORS THAT ARE RELEVANT TO THE CHILD'S PHYSICAL AND EMOTIONAL
WELL-BEING, INCLUDING:
(a) THE FACTORS PRESCRIBED UNDER SECTION 25-403.
(b) WHETHER THE MODIFICATION IS BEING MADE OR OPPOSED IN GOOD FAITH
AND NOT TO INTERFERE WITH OR TO FRUSTRATE THE RELATIONSHIP BETWEEN THE CHILD
AND THE OTHER PARTY OR THE OTHER PARTY'S RIGHT OF ACCESS TO THE CHILD.
(c) THE PROSPECTIVE ADVANTAGE OF THE MODIFICATION FOR IMPROVING THE
GENERAL QUALITY OF LIFE FOR THE CHILD.

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(d) THE LIKELIHOOD THAT THE PARTY WITH WHOM THE CHILD WILL RESIDE
AFTER THE MODIFICATION WILL COMPLY WITH PARENTING TIME ORDERS.
(e) WHETHER THE MODIFICATION WILL ALLOW A REALISTIC OPPORTUNITY FOR
SUBSTANTIAL, FREQUENT, MEANINGFUL AND CONTINUING PARENTING TIME WITH EACH
PARTY, INCLUDING WHETHER IT WILL RESULT IN AN INCREASE IN TRAVEL TIME THAT
SIGNIFICANTLY DECREASES A CHILD'S TIME WITH EITHER PARTY.
(f) THE EXTENT TO WHICH THE MODIFICATION WILL AFFECT THE CHILD'S
STABILITY AND EMOTIONAL, PHYSICAL OR DEVELOPMENTAL NEEDS, INCLUDING WHETHER
IT SIGNIFICANTLY AFFECTS THE CHILD'S ESTABLISHED ROUTINE IN THE CHILD'S HOME,
SCHOOL OR COMMUNITY.
(g) WHETHER A PARTY'S PRIMARY MOTIVE IN REQUESTING OR OPPOSING THE
MODIFICATION IS TO GAIN A FINANCIAL ADVANTAGE REGARDING CONTINUING CHILD
SUPPORT OBLIGATIONS.
(h) THE EXTENT TO WHICH THE NONMOVING PARTY HAS FULFILLED THAT PARTY'S
FINANCIAL OBLIGATIONS TO THE PARTY WHO SEEKS TO RELOCATE A CHILD, INCLUDING
CHILD SUPPORT, SPOUSAL MAINTENANCE AND OBLIGATIONS RELATED TO MARITAL
PROPERTY AND MARITAL DEBT. THE COURT SHALL ALSO CONSIDER THE IMPACT THAT
COMPLIANCE OR NONCOMPLIANCE WITH THOSE FINANCIAL OBLIGATIONS HAS ON THE PARTY
WHO SEEKS TO RELOCATE, INCLUDING OTHER RESOURCES THAT ARE AVAILABLE TO
PROVIDE SUPPORT FOR THE PARTY WHO SEEKS TO RELOCATE A CHILD.
(i) WHETHER TRAVEL COSTS WILL MATERIALLY LIMIT THE NONMOVING PARTY'S
ABILITY TO EXERCISE PARENTING TIME OR VISITATION.
2. THE COURT MAY DENY THE RELIEF REQUESTED BY EITHER PARTY UNLESS THE
COURT FINDS THAT ADEQUATE CAUSE FOR HEARING THE MATTER IS ESTABLISHED BY THE
PLEADINGS.
3. THE BURDEN OF PROOF IS ON THE PARTY WHO IS CHANGING RESIDENTIAL
ADDRESS TO ESTABLISH BY A PREPONDERANCE OF THE EVIDENCE THAT THE MODIFICATION
PURSUANT TO SECTION 25-408, SUBSECTION E IS IN THE CHILD'S BEST INTERESTS.
4. THE COURT SHALL NOT DEVIATE FROM A PROVISION OF THE CURRENT
COURT-ORDERED PARENTING PLAN IN WHICH THE PARTIES HAVE SPECIFICALLY AGREED TO
ALLOW OR PROHIBIT A PARTY TO CHANGE RESIDENTIAL ADDRESS UNLESS THE COURT
FINDS THE PROVISION IS NO LONGER IN THE CHILD'S BEST INTERESTS.
N. IF THE PROPOSED MODIFICATION AFFECTS CHILD SUPPORT, EITHER PARENT
MAY ALSO FILE FOR A MODIFICATION OF CHILD SUPPORT PURSUANT TO SECTION 25-320,
EITHER SIMULTANEOUSLY WITH THE MODIFICATION PURSUANT TO SECTION 25-408,
SUBSECTION E OR AS A SEPARATE MATTER.
J. O. The court may modify an order granting or denying parenting
time rights whenever modification would serve the best interest of the child,
but the court shall not restrict a parent's parenting time rights unless it
finds that the parenting time would endanger seriously the child's physical,
mental, moral or emotional health.
K. P. If after a legal decision-making or parenting time order is in
effect one of the parents is charged with a dangerous crime against children
as defined in section 13-705, child molestation as defined in section 13-1410
or an act of domestic violence as prescribed in section 13-3601 in which the
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victim is a minor, the other parent may petition the court for an expedited
hearing. Pending the expedited hearing, the court may suspend parenting time
or change legal decision-making ex parte.
L. Q. To modify any type of legal decision-making or parenting time
order a person shall submit an affidavit or verified petition setting forth
detailed facts supporting the requested modification and shall give notice,
together with a copy of the affidavit or verified petition, to other parties
to the proceeding, who may file opposing affidavits. The court shall deny
the motion unless it finds that adequate cause for hearing the motion is
established by the pleadings, in which case it shall set a date for hearing
on why the requested modification should not be granted.
M. R. The court shall assess attorney fees and costs against a party
seeking modification if the court finds that the modification action is
vexatious and constitutes harassment.
N. S. Subsection L Q of this section does not apply if the requested
relief is for the modification or clarification of parenting time and not for
a change of legal decision-making.
Sec. 6. Effective date
This act is effective from and after December 31, 2014.

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