State lawmakers are moving to throw a new hurdle in the path of divorced parents who want to move.
Current law allows a custodial parent to move up to 100 miles without permission of the former spouse. SB 1073 would require the parent to provide notice to the former spouse for any move, no matter how many -- or few -- additional miles away that would place the child. That former spouse then could object, forcing a full-blown court hearing that could take months, potentially preventing the custodial parent from taking a new job or even buying a house.
In fact, attorney Ellen Katz pointed out that the legislation, as approved Monday by the Senate Judiciary Committee on a 5-4 vote, actually could let a former spouse force a court hearing even if the custodial parent wanted to move closer.
Sen. Nancy Barto, R-Phoenix, said her legislation is designed to create more fairness for non-custodial parents.
"In a small percentage, maybe 10 to 15 percent, there can be that real tension and abuse of the law,'' she said.
Barto said her legislation, in requiring approval from the other spouse, will encourage communication. And she said it will help ensure that both parents are involved in a child's life.
But she conceded that some changes may be necessary before the measure goes to the full Senate to work out problems.
Keith Berkshire, an attorney who handles divorce cases, said the state should scrap the law which gives parents free rein to move anywhere within 100 miles. He said the law should allow the other parent to object -- and force a court hearing -- for "anything that changes the school drop-off locations, parenting time.''
He also said a hard-and-fast 100-mile exemption fails to consider that not every community is the same.
"Thirty miles in Kingman, when you live off I-40, is nothing,'' he said. And Berkshire said it's likely the student would say in the same school.
"But 15 miles in Phoenix does,'' he said, pointing to the kind of traffic a parent might incur during the middle of the day. "Fifteen miles totally destroys your parenting time, changes schools and everything.''
Thomas Alongi, an attorney with Community Legal Services, acknowledged that 100 miles may not be the ideal break point in deciding when another parent can force a court hearing. But he said it would be wrong to let a non-custodial parent interfere with any move, just because he or she could.
He said a situation might arise where a parent might lose a job and might decide to move from Gilbert to Mesa or even downtown Phoenix.
"Imagine what it would feel like to you if you had to first approach your ex-husband or ex-wife and say, 'Do you mind if I go?' '' he told committee members.
"Anybody who's been to Family Court knows there are people who live to say ' No' because they can, because they're upset about how the verdict went down the last time, or just because it messes up the works,'' Alongi explained. He said this legislation would force that custodial spouse to go back to court, file a new case -- and pay a new filing fee -- and then wait six to eight months for a ruling.
"And on top of that you may lose that opportunity you thought you had just because the other side wanted to cause trouble and object,'' he said.
Alongi told lawmakers there does need to be a "bright line'' of what moves are allowed without going back to court. He said it does not have to be 100 miles but should be some set number.
Shannon Rich who lobbies for the Arizona Coalition Against Domestic Violence, echoed the theme. She said this legislation would allow a parent to object to a move of just a mile or two.
Katz, an attorney with the William E. Morris Center for Justice, said the legislation also fails to consider situations out of the hands of a parent.
For example, she said, a parent could be told by a landlord that a lease is not going to be renewed, giving the tenant a 30-day notice.
"How do I comply with this bill?'' she said. "I need to find a place quickly because if I don't move out in 30 days the landlord will file an eviction.''
Katz also said a parent who is renting but finds a good deal on a home could find that purchase frustrated -- and the deal gone -- because of the months it could take to get the necessary court approval.
Sen. Steve Yarbrough, R-Chandler, who has handled family law cases, said he agrees with foes that there needs to be some "safe harbor,'' an area in which a parent could move without allowing the former spouse to trigger a court hearing. But Yarbrough's vote, along with the three Democrats on the committee, was insufficient to keep the bill from being approved.
Rich said a possible compromise might involve giving judges the right to approve moves below a certain mileage without a full-blown hearing. That would expedite the process and prevent the delays and costs of going to court.
But Sen. Rick Murphy, R-Glendale, said that could undermine the rights of the non-custodial parents to have their day in court and present all the reasons why the judge should deny the move.