Child Custody and Deployment
A service member’s involvement in the military may impact custody considerations and may play a role in how changes can be made to the custody agreement later. To better understand the steps of modifying a custody agreement or how service members are protected while they fulfill their military duties, the following topics will be explored:
Family Care Plan
Military careers can send service members to unexpected locations, either because of deployment or training. For this reason, military families are encouraged to create and update a Family Care Plan.
What is a Family Care Plan?
The purpose of a Family Care Plan is to have something prepared to ensure that the service member’s family is taken care of while they are away. The idea is that this will reduce stress experienced by the service members and their loved ones included in the plan.
In cases where there is a custody order in place, a Family Care Plan for Caregivers may be created to lay out guidelines for the child's caregiver.
How Arizona Determines Custody
In Arizona there are two important terms to remember:
"Legal decision-making" and "parenting time". While these two terms tend to be used together (LDMPT), it is important to recognize that they represent different ideas.
What is legal decision-making?
Legal decision-making allows parents to choose things like where the child goes to school, medical treatments or medication, and what kind of religious activities the child attends.
What is the difference between sole and joint legal decision-making?
There are two types of legal decision-making: sole or joint.
Sole Legal Decision-Making
A single parent is given authority over major decisions about the wellbeing and health of the child. This does not stop parents from talking to one another and making decisions together, but only the parent who has sole legal decision-making is allowed to have the final word.
Joint Legal Decision-Making
In this situation both parents have the same amount of responsibility and say on major decisions of the wellbeing and health of the child. However, the court can decide, in the interest of the child, whether some decisions are only made by a single parent even though they are still in joint legal decision-making.
While parents may agree to joint legal decision-making, this does not mean they get the same amount of time with the child (parenting time).
What is parenting time?
Parenting time is the scheduled amount of time a parent has to spend with their child. For example, one parent may have the child 3-days a week, while the other has the child 4-days a week. Even if a parent does not have decision making powers, they may still be granted parenting time.
My former spouse was abusive, will the court award them parenting time?
It depends. In cases where there is evidence that a parent may be dangerous to the child, then limited, supervised or no parenting time may be ordered by the court.
For more parenting plan examples and details about custody in Arizona: Click Here
How a Judge Decides Legal Decision-Making and Parenting Time (LDMPT)
Judges in Arizona are instructed by the state do what is in the best interest of the child when ruling on legal decision-making and parenting time cases. Meaning, the judge will look at the big picture of things and do their best to give both parents a way to play an active role in taking care of the child, but still prioritize the needs of the child.
What things does a judge consider when making their decision?
The judge will look at many things when deciding legal decision-making and parenting time, here are some of the considerations:
- Past, present, and possible future relationship between the child and the parent,
- The child’s adjustment to a new home, school, or community,
- The mental and physical health of the parents,
- If there is history of domestic violence or child abuse, and
- If a parent participated in a parenting education course.
Here is a full list of all considerations a judge may take when deciding legal decision-making and parenting time in Arizona.
How do I File for Custody in Arizona?
Visit AZCourtHelp.org to find forms, information, and courthouse locations for filing for custody (legal decision-making and parenting time) in Arizona.
Which state do I file for custody in if I recently left or got to Arizona?
Filing should take place in the “home state” of the child. In the perspective of the courts, they are going to consider the home state as the place where the child has been living the most for the past six months. If the child has not been living in their current home for at least six months, the courts may consider the state where the child was born as the home state. The child exiting the state briefly does not change the child’s home state.
If you and your child recently moved to Arizona, you may not be able to file for custody here until you have lived in the state for at least six months. During these six months the other parent may file for custody in the state you came from. For example:
My kids have lived in California all their lives. We recently moved to Arizona less than 6 months ago. If I want to file for custody, it will probably be in California still.
My kids have lived in Texas all their lives. We moved to Arizona over 6 months ago. I can probably file for custody in Arizona.
My kids have always lived in Arizona. They moved to Nevada with their mom less than 6 months ago. I can probably file for custody in Arizona still.
Can legal decision-making and parenting time be changed after they have been set?
Yes, a custody agreement is not permanent. A judge can change a custody order, but this can only happen if a substantial change of circumstances may be affecting the wellbeing and health of the child. A change of circumstance not only needs to be proven, but in a lot of cases some time must have passed since custody was first agreed on before it can be changed.
Custody Changes for Military Families in Arizona
If a parent is in the military and they are deployed or required for training in a different state, this creates a conflict with their responsibilities towards the child or children.
What happens if I must be deployed and I have custody of my child most, if not all, of the time?
As outlined by state law, when the parent who the child spends most of the time with or who has sole legal decision-making, is deployed or mobilized out of the state, the court may create a temporary order modifying the current custody order. This is possible because the deployment is seen as a new and substantial change of circumstances that may impact the child.
A temporary custody order is put in place because state law does not allow for a custody change to be finalized while a parent is deployed or mobilized out of the state because of their military duties.
Changes can be made and finalized while the military parent is away, but only if the deployed parent also agrees with it.
What happens if a temporary order was put in place and I return from active duty?
Once the deployed parent returns, the temporary custody order outlines a specific transition schedule to help return to the pre-deployment custody agreement that was put in place first.
Do judges consider military service as a reason to limit my right to custody?
State law prohibits judges from using a parent’s absence or possible future ones due to military service duties as a substantial and unanticipated change that would impact the child. This way parents in the military are not at a disadvantage in custody negotiations.
How to Relocate with a Child Once a Custody Order is in Place
State law (ARS § 25-408(A)) mentions that if both parents have some type of legal decision-making or parenting time, and both live in Arizona, then either of them can submit a request to relocate with their child.
Does the state consider a move from Phoenix to Mesa relocating?
No, relocating does not mean a typical change of address. Instead, this refers to a parent who wants to leave the state of Arizona or is moving over one hundred miles away from the non-moving parent.
I have been reassigned to a new base, what is the process for changing our custody order?
Before relocating, the moving parent must tell the other parent, through written notice, of their plan to move. If the parent relocates with the child without notifying the other parent, legal consequences are expected. The notice must be sent over certified mail, return receipt requested. Forms for a modification in a custody agreement can be found at each county’s superior court.
NOTE: In cases where the court assigned the relocation or where both parents already had a written agreement one year prior to the relocation, a written notice does not have to be mailed.
How much notice must the other parent be given before I move?
Before relocating, the moving parent must give the other parent a written notice at least 45 days in advance. When notice is given to the non-moving parent, they are then given 30 days to petition the court to stop the relocation. If that petition is denied, the non-moving parent can still try to stop the relocation by petitioning again, but the courts first decide if the second petition is of good cause.
Can I move as soon as I mail a written notice to the other parent?
There are two ways for a parent who submitted a petition for relocation to move with the child before the 45-day notice period is completed.
Both options only apply when there is a pending decision about the relocation petition (submitted by moving parent) or when an application to prevent the relocation (submitted by non-moving parent) is waiting to be decided on:
Option 1
A parent who has sole legal decision-making or a parent with joint legal decision-making whose home is the primary residence of a child, who because of either 1) health or safety reasons or 2) due to employment of the parent or the parent’s spouse may be given permission to leave before the 45 days. (ARS § 25-408(F)(1))
Option 2
A parent who shares joint legal decision-making and has about the same amount of parenting time as the nonmoving parent, and who because of 1) health and safety reasons of the child or 2) because of employment of the parent or the parent’s spouse may be given permission to leave before the 45 days. (ARS § 25-408(F)(2))
There needs to be strong reason, that can be proven, of why the moving parent needs to move quickly. It is important to understand that the parent that petitions for relocation is the one responsible to prove how a relocation is also in the best interest of the child.
What does a Judge look for in a petition for relocation with a child?
When a Judge reviews a relocation petition case, they will look at some of the following:
- The same considerations they took when first deciding legal decision-making and parenting time;
- If the relocation comes from a place of evil, to make it harder for the other parent to see the child;
- Whether the general quality of life of the child moving with the parent would improve from relocating; and
- If the relocation would still allows the non-moving parent to interact with the child.
Read all considerations as outlined by state law, ARS § 25-408(I).
There is Assistance Available
Whether children are being raised in a single household or through co-parenting, it is important for service members to be aware of the programs and resources available to military members raising children.
- Service members looking for family and domestic relation assistance, including custody, contact the appropriate installation's legal assistance office through Military Installations.
- Dealing with custody may force service members and their loved ones to experience a lot of stress and uncertainty. Do not forget to review options available to cope with and adjust during these difficult times.
- There is support available for divorced spouses of military members.
Navigating the custody process is even more complex when individuals have a child in common with their abuser. To facilitate the next steps and to have someone experienced dealing with the military, contact an installation domestic abuse victim advocate.