Jaburg Wilk


Relocation – Mission Impossible?

Categories: Family Law, Article

Relocation issues with divorced parents

On Friday June 5, 2014, the Maricopa County Bar Association hosted its annual Trial Advocacy Seminar. Each year, the organizers select a topic and create a fact pattern designed to challenge the family law judges that serve on the panel. The 2015 edition was no exception.

The topic selected for 2015 was relocation under Arizona Revised Statutes Section 25-408, and given the reluctance of judges to permit relocation, the facts were designed to permit relocation. The essential facts were as follows:

  1. Following divorce in 2010, the parties continued to reside in Mesa, Arizona, shared legal decision-making and an equal parenting time schedule in respect of their three children aged 7, 15 and 17.
  2. Wife sought to relocate to Tennessee with the children in order to further her music career. Wife had already signed a recording contract with a leading provider in Memphis. As a result of the relocation, Wife's income would increase from her employment in Arizona.
  3. Wife's mother was moving with Wife in order to provide any necessary care for the children.
  4. The 17 year old son wanted to remain in Arizona with Husband in order to complete high school and further his football career. The 17 year old had a limited relationship with his two younger siblings.
  5. The 15 year old daughter was pursuing a career in music and was enthusiastic about moving to Memphis. The 15 year old was closely aligned with Wife and the 7 year old child, and wished to pursue her own music career in Memphis.
  6. The 7 year old son was a special needs child and bonded closely to both Wife and the 15 year old. The leading school in the US for the 7 year old was located in Memphis and he had been accepted to the school – with a scholarship.
  7. The evidence established that the crime rates in Memphis are substantially greater than in Mesa.
  8. A leading psychologist was jointly engaged to assist the Court in deciding the issue. The psychologist opined that it would be in the best interests of the children that the oldest child remains in Mesa with Husband and that the two younger children relocate to Memphis with Wife.

impact of separating siblings studied

In creating the fact pattern, it was the intention of the organizers that relocation would be permitted for the two younger children while the 17 year old would remain in Mesa with Husband – all in line with the recommendation of the Court appointed expert. In part, the organizers sought to focus on the impact of separating the siblings and how that recommendation would be received by the Judges.

During the presentation, it became clear that Wife would be moving to Memphis – with or without the children, and that although Husband was not as involved (with the children) as Mother, he was the more stable parent. The Court appointed expert supplied ample (and uncontroverted) evidence that splitting siblings (under the circumstances of this case) was not harmful.

Four judges rendered their judgments – and the decision was unanimous. All three children would remain with Husband in Mesa. While the decision regarding the 17 year old was expected, the decision regarding the younger children was surprising under the circumstances.

Given the unanimous decision of the judges (each individually delivered), the following is clear:

  1. Where the parties share decision making and equal parenting time, the burden to show that relocation is in the best interests of the children is a difficult burden to satisfy.
  2. Data regarding crime statistics is of little evidentiary value.
  3. Data regarding benefits of various schools and school programs (even in respect of a special need child) did not have a significant impact on the outcome.
  4. While the view of the (widely respected) expert is of interest, not one of the judges was convinced by the expert's detailed report and testimony suggesting that relocation and splitting the siblings was in the best interests of the children.
  5. There is a judicial reluctance to permit relocation where both parties are involved in the lives of the children.
  6. It appears that the stability and reasonableness of the parties was of paramount concern to the judges.

In conclusion, unless the facts are particularly unusual, it may well be 'mission impossible' to convince a judge that relocation is in the best interests of the children. Certainly, the organizers of the Trial Advocacy Seminar attempted to create those facts – and believed that they had done so – but the judges were not convinced.

About the author: Mervyn T.  Braude is a family law attorney at the Phoenix law firm of Jaburg Wilk. He is a certified family law specialist by the State Bar of Arizona.  Mervyn is a 2010 Southwest Super Lawyer. Got a legal question for Mervyn? Contact him here.

This article is not intended to provide legal advice and only relates to Arizona law. It does not consider the scope of laws in states other than Arizona.  Always consult an attorney for legal advice for your particular situation.