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  1. #1
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    Jul 2013
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    Default Modifying Custody After One Parent Moves Out of State

    My question involves a child custody case from the State of: Arizona

    My exwife and I share custody of our 3 children and have equal parenting time (2 weeks on, 2 weeks off). A few months ago she moved from Arizona to Salt Lake City, and now wants our 14 year old son to live with her. What are her rights and what are my rights since she is the one who decided to move. As a side note, since the parenting plan was approved by the court a year and a half ago she has only had our children for maybe 30 days total even when she was living in Arizona.

  2. #2
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    Apr 2009
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    Inland Empire
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    Default Re: Exwife Moved Out of State

    Quote Quoting tcolby
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    My question involves a child custody case from the State of: Arizona

    My exwife and I share custody of our 3 children and have equal parenting time (2 weeks on, 2 weeks off). A few months ago she moved from Arizona to Salt Lake City, and now wants our 14 year old son to live with her. What are her rights and what are my rights since she is the one who decided to move. As a side note, since the parenting plan was approved by the court a year and a half ago she has only had our children for maybe 30 days total even when she was living in Arizona.
    At this point you have status quo. I suggest you file for a modification of the order to accomodate a long-distance parenting plan for mom. Since the kids have resided with you, this would probably be the best course of action for you to take.

    I personally would not send the kiddo to mom's until you have a new order in place.

  3. #3
    Join Date
    May 2013
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    125

    Default Re: Exwife Moved Out of State

    Quote Quoting Antigone
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    ...I personally would not send the kiddo to mom's until you have a new order in place.
    That's not dad's call to make, and will only place him in contempt. He must continue to comply with the order.

  4. #4
    Join Date
    Jul 2012
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    So Cal
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    518

    Default Re: Exwife Moved Out of State

    Quote Quoting gator1
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    That's not dad's call to make, and will only place him in contempt. He must continue to comply with the order.
    Ordinarily I would agree, BUT not in this situation. Dad needs to get back to court ASAP for a modification.

  5. #5
    Join Date
    Feb 2011
    Location
    Virginia
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    586

    Default Re: Exwife Moved Out of State

    The small risk of contempt (will a judge believe it was willful, or will the judge believe it wasn't feasible and therefore not willful on dad's part) is likely not worth the very big risk of mom deciding not to send them back, which will make everything ten times worse. And, if dad files for the modification, he is showing the court that he does in fact.want to be proactive about kid spending time with mom. Sorry, gator.

  6. #6
    Join Date
    May 2013
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    125

    Default Re: Exwife Moved Out of State

    Holy cow, it's hard to believe some here are recommending the right course of action is for dad to refuse to allow mom to have possession, which would be in direct violation of the custody order. There is no "small risk" of being found in contempt, but an absolute certainty.

    No attorney would even hint that this is anything less than a stupid course of action, and in this case no one who suggested it is a good idea, is an attorney.

    The mere fact mom expressed a desire to modify custody, and is now living in another state, does not give dad the legal discretion to willfully violate the order. And some here suggest that the Court will deem this proactive??? The court will most likely proactively put a boot up his rear end. If mom, and that is a huge if, decides to violate the order by not returning the child, the court can remedy that quickly after an emergency hearing.

    Even if dad moves ASAP to modify the order, the reality is that modification of a final order to change not merely visitation but joint physical to sole physical will take months if not longer, especially if contested, as is expected here. And during this time dad should be refusing mother possession of her children??

    Worst case here dad could wind up royally screwed after the dust settles, and the risk of that is not small. Dad needs to consult with AN ATTORNEY before making any decisions on how to handle this matter.

  7. #7
    Join Date
    Jul 2012
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    So Cal
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    518

    Default Re: Exwife Moved Out of State

    I agree that dad needs to retain an attorney ASAP and needs to file a motion with the court to modify the parenting plan. 50/50 parenting time isn't feasible given mom's move several hundred miles away.

    A good lawyer can file for modification and request an expedited hearing & the issuance of temporary orders revising visitation & joint physical custody pending trial (if that becomes necessary).

    Circumstances and facts matter. Go read up on AZ visitation enforcement, good cause for non-compliance in AZ, and learn what the actual penalties are IF found in contempt.

    FWIW, courts will not typically hold a party in contempt unless there have been repeated violations.

  8. #8
    Join Date
    May 2013
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    125

    Default Re: Exwife Moved Out of State

    Many states do not allow temporary orders in a suit for modification that change the terms of legal/physical custody or the child's primary residence til after trial and judgment rendered. So AZ rules need to be reviewed in this regard.

    The response to another parent refusing to allow court ordered possession should be to send notice by certified mail to them (or their attorney if they have one) of intent to file contempt/sanctions (with a very short time to correct this). Then follow through if needed filing the motion and setting an expedited hearing. If the matter is not corrected by the hearing, the non-complying parent will then have an opportunity to explain to the judge why they are continuing to refuse to comply with the order.

    If the parent promptly complies before the motion filed, issue is pretty much over on first offense, which is documented. If parent waits until motion filed and hearing set, although the bearing may be cancelled, the attorney can rightfully seek sanctions at the next hearing for attorney fees incurred on this matter.

    If a party is in contempt, they will almost certainly be found in contempt, regardless of first offense or not. A finding of contempt establishes for the record it did occur.

    The extent to which sanctions are imposed is the next step. Sanctions are intended to prevent recurrence and punish as necessary, and on first offense a verbal warning and imposition of attorney fees is often appropriate and sufficient.

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