• Modification of Legal Decision-Making or Parenting Time
  • October 25, 2013 | Author: Cynthia L. Best
  • Law Firm: Best Law Firm - Scottsdale Office
  • The standard for modifying legal decision-making or parenting time requires (1) a material change in circumstances affecting the welfare of the child, and (2) only if the Court finds such a change does the Court reach the question of whether a change in custody would be in the child’s best interest. Case law requires the former and A.R.S. § 25-403 requires the latter. A court in Arizona must deny a motion for modification of legal decision-making or parenting time, unless it is found that adequate cause for hearing the motion is established by the pleadings. The most recent published Arizona case that touches directly on this issue is Owen v. Blackhawk, 206 Ariz. 418, 420, 79 P.3d 667, 669 (Ct. App. 2003). There are several dozen unpublished cases, and even a few other published cases that touch on some aspect of the modification statute, but Owen v. Blackhawk remains the most recently published case directly on point.

    Meeting the standard for a modification of legal decision-making or parenting time is highly fact intensive. Here are several scenarios that met the standard:

    • Mother’s relocation to Texas with the minor child in violation of the Decree was a material change in circumstances affecting the welfare of the minor child. Hendricks v. Mortensen, 153 Ariz. 241, 254, 735 P.2d 851, 854 (Ct. App. 1987). Mother was given custody even though it was she who violated the express provision of the decree. The court reasoned that the primary emphasis is on the child's best interest, not punishing a wrongdoing.  Id. at 244, 854.
    • Mother’s relocation to Montana before the Decree was entered was still a material change in circumstances affecting the welfare of the minor children as it made the parenting agreement logistically impossible. Canty v. Canty, 178 Ariz. 443, 449, 874 P.2d 1000, 1006 (App. 1994).
    • Father’s relocation to Texas and mother’s relocation to North Carolina were material changes affecting the welfare of the minor child because they made the parenting plan impractical. Shifflet v. Porter FC2012-051232. See Minute Entry dated May 23, 2013 at 8.
      Additionally, here are several scenarios that failed to meet the standard:
    • The Supreme Court of Arizona held that there was sufficient evidence to show that the mother had recovered from her mental illness, but that alone was not sufficient to warrant a change in custody. Galbraith v. Galbraith, 88 Ariz. 358, 360, 363 P.2d 1023, 1026 (1960).
    • “The chief changed circumstances relied upon by Pridgeon to support his motion for change of custody were that the child had lived with him and his new wife for two years, attending school and making friends in that neighborhood.” Pridgeon v. Superior Ct., 134 Ariz. 177, 179, 655 P.2d 1, 3 (1982). The Arizona Supreme Court felt that this was not enough as it held that father’s affidavits merely stated conclusions without any factual support and this failed to meet the burden of showing detailed facts supporting the requested modification as required under A.R.S. § 25-339. Id. at 181, 5.
    • The court held that since mother said she would not move if she could not relocate with the minor child and never did move from Arizona, then there was not a material change of circumstances affecting the welfare of the minor children. Owen v. Blackhawk, 206 Ariz. 418, 422, 79 P.3d 667, 671 (Ct. App. 2003).
    • In another case, mother sought a modification of custody and parenting time because father had remarried, father’s new wife caused discord at father’s home, and father and his new wife were having financial difficulties. Zumstein v. Zumstein FC2003-011452. See Minute Entry dated May 30, 2013 at 3. The court held that this was not a material change in circumstances affecting the welfare of the minor child because mother’s allegations were not much different from the circumstances at the time of the last orders in 2008. Id. at 6. The court reasoned that the minor child had been living with father and his new wife since 2003 and father’s financial troubles were only temporary. Id.
    • Finally, mother sought a modification of custody and parenting time based on incidents that occurred between her and father. The court held that this was not a material change in circumstances affecting the welfare of the minor children because the incidents mother alleged mainly had to do with her and father’s relationship and occurred very soon after the Decree was entered.

    MATERIAL CHANGE IN CIRCUMSTANCES AFFECTING THE WELFARE OF THE CHILD

    “To change a previous custody order, the court must determine whether there has been a material change in circumstances affecting the welfare of the child.” Canty v. Canty, 178 Ariz. 443, 448, 874 P.2d 1000, 1005 (App. 1994).  The court has broad discretion in determining what constitutes changed circumstances. Id. “Only after the court finds a change has occurred does the court reach the question of whether a change in custody would be in the child’s best interest.” Pridgeon v. Superior Ct., 134 Ariz. 177, 179, 655 P.2d 1, 3 (1982). Thus, the court only gets to the factors enumerated under A.R.S. § 25-403 after it has found a material change in circumstances affecting the welfare of the child.

    A.R.S. § 25-403 enumerates the factors to determine if a modification in legal decision-making or parenting time is in the best interests of the child. In subsection (a), the court lays out the factors to be considered, which include the wishes of the parents, the wishes of the child, interaction between child and parent, and the mental and physical health of the individuals involved. In subsection (b), the statute requires the court to make specific findings on the record regarding the factors and to base its decision on what is in the best interest of the child. While the best interests of the child is a statutorily imposed requirement, the “material change in circumstance” requirement is imposed by case law, as described above.[1] Even though a court must find a material change in circumstances affecting the child, the best interests of the child is the primary consideration in awarding legal decision-making or parenting time. Hays v. Gama, 205 Ariz. 99, 102, 67 P.3d 695, 698 (2003). “Even if the requisite proof of changed circumstances is made, the modification prayed for will be granted only if the welfare of the child will be advanced thereby.”  Galbraith v. Galbraith, 88 Ariz. 358, 362, 356 P.2d 1023, 1026 (1960). Once a “material change of circumstance” is found, the focus then turns to the best interests of the child. A court does not consider the facts that were known to the judge in the original decree. Pridgeon v. Superior Court, 134 Ariz. 177, 179, 655 P.2d 1, 3 (1982). Rather, the court only makes a finding on whether there has been a change in circumstances since that decree. Id. But once that determination is made, the court does look at the facts known at the time of the original decree in order to assign significance to the change of circumstances. Id.

    The factors to be considered are as follows:

    1.  The past, present and potential future relationship between the parent and the child.

    2. The interaction and interrelationship of the child with the child's parent or parents, the child's siblings and any other person who may significantly affect the child's best interest.

    3. The child's adjustment to home, school and community.

    4. If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time.

    5. The mental and physical health of all individuals involved.

    6. Which parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent. This paragraph does not apply if the court determines that a parent is acting in good faith to protect the child from witnessing an act of domestic violence or being a victim of domestic violence or child abuse.

    7. Whether one parent intentionally misled the court to cause an unnecessary delay, to increase the cost of litigation or to persuade the court to give a legal decision-making or a parenting time preference to that parent.

    8. Whether there has been domestic violence or child abuse pursuant to § 25-403.03.

    9. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time.

    10. Whether a parent has complied with chapter 3, article 5 of this title [completion of the parenting class].

    11. Whether either parent was convicted of an act of false reporting of child abuse or neglect under § 13-2907.02.

     

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    [1] Under ARFLP 91(D) (6), once a Petition to Modify Child Custody has been filed, the Court then determines whether it will hold a hearing. Under A.R.S. § 25-411 (L), the Court will deny the petition unless the Court finds adequate cause for hearing the petition from the pleadings.