questions & answers

Question: My children relocated to New York three years ago because of mother's job. Since, mother has not complied with the parenting order, failing to send them back for father's parenting time on several occasions. The two children are currently with father for summer vacation. Both children told father of regularly being left alone overnight. The children are 6 and 8. They are scheduled according to the parenting time order to go back to New York at the end of August (less than 7 weeks). What can I do to keep them from returning to that environment?

Answer:

The only way that a child's primary residence can be changed from the home of one parent to that of another parent is by a modification of the legal decision-making decree that first placed the child in the primary care of the custodial parent.  Under Arizona law, a petition for modification may be made at any time later than one year after the original order was issued.  A.R.S. 25-411.  A petition may be made earlier than one year after the entry of the original order only it "there is reason to believe the child's present environment may seriously endanger the child's physical, mental, moral or emotional health."  A.R.S. 25-411.

However, there is an additional complication that arises when the child and the parent seeking the modification reside in different states.  Before a modification can be granted, it must be determined which state's law will apply.  Nearly every state, including Arizona and New York, have adopted a version of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).  This uniform law controls the determination of which state's law will apply to any specific custody case.  This statute includes a detailed and complex formula for establishing jurisdiction (the power to make a legal decision) over a custody case.  Arizona's version of the UCCJEA is found at A.R.S. 25-1001 through 25-1067.  Because of the complexity of this law, AZLawHelp cannot determine which state would have jurisdiction in any particular case.  As this is the first step toward resolving a custody dispute across state lines, it is very important to consult a licensed attorney before taking any action to request a modification.