Motion to Modify Custody and Visitation Order in Arizona

Yes, Arizona law allows either party that is subject to a child custody or visitation order to request a modification of the order. It is important to first understand how child custody decisions are made prior to attempting any child custody modifications.

Child custody in Arizona, also referred to as “legal decision-making” and “parenting time,” grants specific rights and responsibilities to a parent upon receiving custody of their child in a divorce or legal separation setting.

When a parent has legal custody, they have the authority to make crucial decisions about their child’s life. These decisions can include:

• The right to make educational decisions for the child, such as what type of school they go to, what type of courses the child should take, and other educational choices
• The right to make religious decisions regarding what religion to raise the child in, if any
• The right to make legal decisions on behalf of the child, such as whether or not to enter into certain legal contracts on behalf of their child or represent the child in a lawsuit
• The right to make medical decisions for the child, such as whether or not the child should undergo invasive and noninvasive procedures
• The right to make decisions regarding the physical or psychiatric treatment of the child

When Can You Modify a Custody or Visitation Order?

In Arizona, you can modify a custody or visitation order in Arizona under certain circumstances. Examples of common reasons that may justify a modification of a prior order include:

• Change in Circumstances: Evidence of a significant change in circumstances that affects the child’s well-being, such as a parent’s relocation, change in work schedule, or a change in the child’s needs
• Parental Relocation: If one parent plans to move a considerable distance away, making the current custody arrangement impractical
• Failure to Comply: If one parent is not adhering to the current custody or visitation order.
• Child’s Best Interests: Any change that would better serve the child’s best interests, such as improved living conditions or better educational opportunities
• Domestic Violence or Abuse: If there has been domestic violence, child abuse, or neglect since the original order was issued

In addition to the above, if both parents agree to the modification, they can draft an agreed new custody agreement and submit it to the court for approval. It is generally advised to have a family law attorney help with drafting the agreed order in order to ensure the agreement is legally sound and enforceable.

However, if the parties cannot agree to the modification, one parent can file a petition to modify the custody order in the court that has jurisdiction over the matter. The court will then evaluate the filing party’s request based on the child’s best interest standard.

The factors considered by a family court in Arizona regarding when determining whether or not an order is in the child’s best interest are outlined in Arizona Revised Statutes (“A.R.S.”) § 25-403. The factors include:

• Past, Present, and Potential Future Relationship: The relationship between the parent and the child, including the child’s interactions with siblings and other significant individuals
• Child’s Adjustment: The child’s adjustment to home, school, and community
• Child’s Wishes: If the child is of suitable age and maturity, their wishes regarding legal decision-making and parenting time may also be considered
• Mental and Physical Health: The mental and physical health of all individuals involved
• Parental Cooperation: Which parent is more likely to allow the child frequent, meaningful, and continuing contact with the other parent
• Domestic Violence: Whether there has been domestic violence or child abuse
• Misleading the Court: Whether one parent intentionally misled the court to cause unnecessary delays or increase litigation costs
• Coercion or Duress: The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time
• Compliance with Court Orders: Whether a parent has complied with the prior court order concerning custody
• False Reporting: Whether either parent was convicted of false reporting of child abuse or neglect

All of the above factors play a role in determining what is considered to be in a child’s best interest. In other words, the child’s best interest standard is a legal standard that all family courts adhere to when making decisions regarding children.

How to File a Petition for Modification of Child Custody or Visitation Order

In order to file a petition for modification of child custody or visitation in Arizona, you should follow these steps:

• Determine Eligibility: First, you should ensure there has been a “significant change” in circumstances that affects the child’s best interests, which would make you eligible to request a modification
• Gather Necessary Forms: You should then obtain the required forms from the Superior Court in the county where the original order was issued
  • These forms can be online or at the court’s self-service center
• Complete the Forms: You will then need to fill out the petition form detailing the reasons for the requested modification and any supporting evidence
• File the Petition: You must then submit the completed forms to the court clerk’s office and pay the filing fee
• Serve the Other Parent: It is important to note that you are required to legally notify the other parent about the petition by serving them with a copy of the filed documents
• Attend a Hearing: The court will schedule a hearing to review your petition and any evidence presented
• Court Decision: The court will then make a decision, based on the child’s best interest, to either grant or deny your request for modification

What Are Temporary Child Custody Modifications?

In Arizona, temporary child custody modifications, also known as emergency modifications, can be requested when there is evidence of an immediate threat to the child’s health, safety, or welfare.

Temporary child custody modifications are made without advance notice to the other parent and are intended to address urgent situations. In order to request a temporary modification, you must:

• File a Motion: Submit a motion for temporary modification orders without notice
  • This motion should include specific facts about the emergency and why immediate action is necessary, and it generally requires a sworn affidavit to be attached to the motion
• Provide Evidence: You must then present evidence that supports your claim of an emergency situation
• Attend a Hearing: The court will then review the motion and evidence and may hold a hearing to determine if the temporary modification is warranted

If granted, the temporary modification will remain in effect until a final decision is made on a permanent custody arrangement. A local attorney in Arizona will be able to help guide you through Arizona’s rules regarding obtaining a custody modification or modification of a visitation order. They will also be able to help ensure that you have grounds for seeking the modification.

Do I Need a Lawyer To Modify a Child Custody or Visitation Order?

If you are seeking modification of a prior custody or visitation order, it is in your best interests to first consult with an experienced Arizona child custody lawyer. LegalMatch can assist you in setting up an initial legal consultation with a custody lawyer in your area.

An experienced child custody attorney will be able to help you understand your state’s specific laws on child custody modifications, including ensuring that there has been a significant change that allows you to seek such a change.

They can also help you attempt to reach an agreed modification of child custody or visitation, as well as assist you in drafting a legally sound agreed order to present to the court. Should an agreed order not be possible, an attorney can also help you properly draft, file, and serve the petition for modification on the other party. Finally, an attorney will also be able to represent you at any in-person court proceeding, as needed.