Divorced parents who want to move may soon find new legal hurdles in their path.
Legislation awaiting action by the state Senate would scrap existing laws which essentially allow a parent who has custody of a child to move up to 100 miles pretty much at will. Instead, virtually any move could trigger a court hearing.
SB 1038 also would scrap a provision in the existing 20-year-old law that permits a court to take into account whether a move would be in a parent's best interest. Instead, a judge would be limited to what's best for the child.
Ellen Katz, a public interest lawyer, acknowledged that 100-mile limit does favor the parent who wants to move without interference from a former spouse. But she said allowing a non-custodial parent to challenge virtually any move at all creates its own problems and gives that person an unfair advantage.
“It's almost like that, at every step, the moving party is tethered to their current address,” said Katz who works for the William E. Morris Institute for Justice.
The legislation is the first major update in Arizona laws dealing with “parenting time” in two decades in a state where in 2012 there were 37,064 marriages and 28,072 divorces. The Arizona Department of Health Services has no data on how many of those divorces involved minor children.
Attorney Ellen Seaborne, who practices family law and helped craft the changes, said they are long overdue. She said that 100-mile rule that seemed appropriate in 1994 no longer makes sense.
“Back in those days, Phoenix wasn't so big,” she said. “Neither was Tucson.”
Now, Seaborne said, a move across town could mean a big increase in travel time for the non-custodial parent who has to pick up the child and drop him or her off by a set time.
“What fun is it to see mom or dad if you're spending half the time in the car?” she asked.
She said eliminating that artificial line will allow a court – if it comes to that – to determine if a move will have a significant impact on the time the other parent gets to spend with the child. And that, she said, keeps the focus where it belongs: on the best interests of the child.
Seaborne also said the current law allows parents to “game” the system with “serial moves,” each of them less than 100 miles.
“A little creeping here, a little creeping here, and suddenly you're over 100 miles,” she said.
“But you never got it in one fell swoop,” Seaborne said. “Sneaky, but that caught on.”
Katz, however, sees problems with the change.
She said there are circumstances where a parent needs to move – and needs to do that before the new 45-day notice requirement.
Katz said SB 1038 does allow a judge to approve that, but only if there is not a “significant impact” on a court-approved parenting plan. That, phrase, however, is defined to include a “the child's established routine in the child's home, school or community.”
“There is going to be almost no moves that aren't going to affect the child's routine,” she said.
Katz acknowledged the legislation has an escape clause of sorts. It says that any move of less than two miles and remains within the same school district will not impact the child.
But Katz said that provides little help to someone who is a tenant in an apartment who has been told she or he has to vacate the place in 30 days.
“That puts a huge burden on me to find housing quickly that meets that criteria,” she said.
One other point of contention Katz has with the measure is that proposed change in the law about whose interests have to be served to justify a move.
Seaborne said the law now reads that one factor for a court to consider in deciding on a request to relocate is whether the move will improve the general quality of life for the custodial parent or for the child.
“What that does is the custodial parent ... has the same value as the child's best interests,” she said. “And it also says that the parent who's not moving has no value.”
That, Seaborn said, is wrong.
“Constitutionally, both parents have value,” she said. “And research-wise, they do.”
Katz said it's not that simple.
“If a parent is moving to better themselves for a job – it may be to just get closer to a job that's 10, 15 miles away – that's a factor that should be in the equation,” she said. “Bettering the quality of life for the parent may, in fact, impact the quality of life for the child.”