- Modifications are sometimes requested due to “emergent need”. This refers to modifications that are requested as soon as possible for the sake of the health and safety of the child or children involved.
- Children can age out of their parenting plans, which may require that those plans be modified. Parents usually agree on these modifications and don’t need the Court to get involved. The Court only gets involved when there’s a disagreement.
- As of around two years ago, the Court can no longer rule on specific actions (i.e., they can’t rule that the child go to one or another specific school). Rather, the Court gives sole decision-making authority to the parent they find for in the general area of the conflict (i.e., the area of school choice rather than that specific decision about school choice).
- Parties must wait one year to modify any Order that involves parenting time/legal decision-making, except for cases where the modification is necessary for the health or safety of the child.
In my personal practice, many of my cases are what would be considered “emergent need” cases, which are modifications requested for the sake of the health and safety of a child.
For example, let’s say one parent is taking the children around a new spouse that has been abusive and has been charged with and convicted of domestic violence in the recent past. That would be considered an emergent need case. That is, the modification involves a potential health and safety need that we have to ask the Court to address immediately. These are cases in which we have to get in and try and do something to protect the child as soon as possible. Right now, three of my cases involve emergent need.
A few of the other cases I have right now concern children aging out of their parenting plan. This happens quite often, especially as children grow and become more involved in various school and extracurricular activities.
For example, let’s say that two co-parents have a standing parenting plan for their child. That parenting plan works great when the child is under 5. However, once the child turns 5 and starts school and extracurricular activities, the parenting plan needs to be modified to reflect those new scheduling needs.
Most of the time, parents agree on the types of changes necessitated by a child aging out of an old plan. When parents agree, they don’t generally need me to facilitate the modification. It is when parents disagree that we must come and ask the Court for assistance.
Probably the third most common reason why I get brought on to modification cases are disagreements about which school a child is going to go to. These cases usually occur in the summer, before the start of the new school year.
Up until around two years ago, the way this used to work in Arizona is that the Court would decide the matter themselves. They would hear the testimony from each side, and decide which school was best for the child.
However, Arizona’s Court of Appeals recently ruled that the Court is no longer allowed to unilaterally make those decisions. Now, when these matters come up, the Court is required to give one party or the other party sole decision-making authority over that particular subject matter.
So, let’s say the disagreement is about which school to send a child to. We handle it as follows:
- We Petition the Court for a change in decision-making authority
- We explain the situation. Depending on the details, we paint a picture of the disagreement to the Court.
- The Court decides who gets decision-making over that area.
This model could apply to many areas of contention in addition to the choice of school issue.
For example, I have another case where one parent wanted to have a passport as ID for the child, and the other parent refused a passport and only wanted a driver’s license or driver’s permit as ID for the child.
So, in that case, we used to just be able to go to Court and say, “Compel them to cooperate in getting the child a passport or give us an Order that they don’t have to do so”.
These days, the Court must give one parent sole decision-making authority over passport decisions, and that’s the way it is handled instead.
When Can A Parent Legally Petition The Arizona Courts For A Change In Parenting Time Or Legal Decision-Making?
The statute or set of laws around parenting time states requirements that must be met before your request for a modification can be heard by the Court.
The most important requirement or factor is timing. Generally, you have to wait one year from the time any Order that involves legal decision-making or parenting time is established to request modification. Whether you went to the Court to establish paternity or to finalize a divorce, the last time parenting time was part of an established court Order in your case, the date that Order was established starts the clock on a year before modifications can typically be requested.
This rule goes for both initial Orders and modifications to initial Orders. Whether the Order was initially established for the first time or was officially modified, the clock starts at that time for the one-year wait period before any additional modifications can be accepted.
There are some exceptions to this rule, most of them being cases where that are emergent, i.e., where a modification is a matter of preserving the health and safety of the child.
The actual wording of the relevant statute is as follows:
“A person shall not make a motion to modify a legal decision-making or parenting time decree earlier than one year after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child’s present environment may seriously endanger the child’s physical, mental, moral or emotional health. At any time after a joint legal decision-making Order is entered, a parent may petition the court for modification of the Order on the basis of evidence that domestic violence involving a violation of section 13-1201 or 13-1204, spousal abuse or child abuse occurred since the entry of the joint legal decision-making order. Six months after a joint legal decision-making order is entered, a parent may petition the court for modification of the order based on the failure of the other parent to comply with the provisions of the order. A motion or petition to modify an order shall meet the requirements of this section.”
What Is The Process To Petition The Courts For A Change In Parenting Time And/Or Legal Decision-Making?
To modify any type of order, you’ll have to submit an affidavit or a verified petition. These documents set forth the facts that support your request for modification. In these documents, you basically state your reasoning behind requesting a modification.
Generally, the Courts are more likely to grant your request if you can clearly show a significant change of circumstances from the time the last Order was established. In your document, you will explain what the circumstances were previously, and what has changed such that has prompted the need for a modification.
As the statute itself states:
“The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the pleadings, in which case it shall set a date for hearing on why the requested modification should not be granted.”
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