Bill Text: AZ SB1038 | 2014 | Fifty-first Legislature 2nd Regular | Engrossed
Bill Title: Parenting time; child relocation
Spectrum: Partisan Bill (Republican 1-0)
Status: (Engrossed - Dead) 2014-04-15 - House third reading FAILED voting: (22-38-0-0) [SB1038 Detail]
Download: Arizona-2014-SB1038-Engrossed.html
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House Engrossed Senate Bill |
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State of Arizona Senate Fifty-first Legislature Second Regular Session 2014
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SENATE BILL 1038 |
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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)
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 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.
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.
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. Except as provided in subsection C of this section, 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 that the change in residential address contained in the notice will not result in a significant impact to an existing court order regarding legal decision-making or parenting time.
B. The notice required by this section must be made by certified mail, return receipt requested, by restricted delivery or pursuant to the Arizona rules of family law procedure.
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 the residential address of the moving party 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.
4. The party seeking to change residential address files a stipulation signed by the parties that meets the requirements of subsection E of this section.
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 or parenting time, the party seeking to change residential address must file and serve, at least forty-five days before any change to the party's residential address, either a petition for modification pursuant to section 25-411 or a stipulated order signed by the parties that meets the requirements of section 25-403.02, subsection C. The petition must include the information pursuant to subsection A of this section unless the moving party is exempt under subsection C of this section. A party who files a petition to modify meets the notice requirement of subsection A of this section. A stipulation shall state the following:
1. The moving party provided all relevant information to the nonmoving party to allow the nonmoving party to enter into the stipulation.
2. If existing court orders must be modified, all modifications to which the parties have agreed.
3. If existing court orders do not need to be modified, that the parties agree that modification is not needed.
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 to a court order regarding legal decision-making or parenting time.
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. The court may impose any other appropriate sanction.
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. There is a rebuttable presumption that a change of residential address of less than ten miles does not result in a significant impact on legal decision-making, parenting time or visitation, unless the change in residential address will result in a change to the school the child will attend after the move, if the moving party does not have sole legal decision‑making authority regarding education.
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.
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.
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. If the court finds, based on a consideration of all the evidence, that the move will have a significant impact on any existing order regarding legal decision-making, parenting time or visitation, 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 likelihood that the party with whom the child will reside after the modification will comply with parenting time orders.
(d) 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.
(e) The extent to which the modification will affect the child's stability and emotional, physical or developmental needs.
(f) Whether a party's primary motive in requesting or opposing the modification is to gain a financial advantage regarding continuing child support obligations.
(g) Whether travel costs will materially limit the nonmoving party's ability to exercise parenting time or visitation.
2. If the court finds, based on a consideration of all the evidence, that the move will not have a significant impact on any existing court order regarding legal decision-making, parenting time or visitation, the court shall explain its reason for finding that the move will not have a significant impact. The court is not required to make any additional findings pursuant to paragraph 1 of this subsection.
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 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.
