Arizona Court of Appeals Division One Holds That Courts Need Address A.R.S. § 25-408(I)’s Relocation Factors in Child Custody Cases Only if (1) There Is a Written Agreement or Court Order Providing for Custody, or (2) Both Parents Reside in Arizona.

The Appellant (“Father”) and Appellee (“Mother”) had a child in 2004.  Mother and Father never married, and the child lived at times with each parent separately or with both parents. In 2006, while the child was living with Father, Mother decided to marry and move to Maryland to be with her new husband. Mother wanted to take the child with her to Maryland, but Father did not agree; Mother moved to Maryland without the child. There was no written agreement regarding custody. Father filed a paternity action. After a trial, the family court entered an order providing for joint custody and equal parenting time. Father appealed, arguing that this was a relocation case and thus the family court should have considered the relocation factors set out in A.R.S. § 25-408(I).

The Arizona Appeals Court affirmed the family court’s order. A.R.S. § 25-408(B) sets out the statutory prerequisites for the application of the statutory relocation factors. The Court held that the plain language of the prerequisites means that a family court must consider the statutory relocation factors only when either (1) there is “a written agreement or court order providing for custody or parenting time by both parents” or (2) both parents reside in Arizona. Since neither prerequisite applied here, the Appeals Court held that the family court was not required to consider the statutory relocation factors.

Judge Gemmill authored the opinion; Judges Weisberg and Orozco concurred.