Arizona Court of Appeals
Alcott v. Killebrew
Alcott v. Killebrew is an unpublished memorandum decision where the Arizona Court of Appeals affirmed the family court’s decision to dismiss a petition to modify parenting time and child support based on its failure to allege substantial and continuing changes in circumstances since the last child custody orders were entered.
January 16, 2020
1 CA-CV 19-0013-FC
Divorce and Subsequent Modifications
The parties divorced in 2015 by consent decree where they agreed their children would live primarily with Mother and that Mother would retain final say legal decision-making authority. Less than a year later, the parties agreed to modify their parenting schedule to exercise equal parenting time.
In August 2017, Mother filed a petition to modify parenting time and child support based on Father’s relocation to Flagstaff. After an evidentiary hearing, the family court modified the parenting schedule to allow Father to exercise parenting time every weekend except for the first of each month. Its order also provided that parenting time would “revert back to a week-on/week-off schedule” automatically if Father relocated back “within 25 miles of Mother’s residence.”
The next year Mother filed another petition to modify parenting time and child support after Father relocated to Phoenix. The family court dismissed Mother’s petition because it failed to allege substantial and continuing change since the previous orders were entered.
Substantial and Continuing Changes
Mother appealed the dismissal and argued that her petition “contained entirely new allegations” that proved change in circumstances adequate to require a hearing.
Pursuant to A.R.S. § 25-411(L), a parent who seeks to modify parenting time must “submit an affidavit or verified petition setting forth detailed facts supporting the requested modification” and the family court will set a hearing only if it finds “adequate cause” is established by the pleadings.
Although adequate cause is not specifically defined by statute, it has been interpreted to mean any change in circumstance after the previous orders were entered that materially affects the welfare or best interest of the child.
Family courts have considerable discretion to determine whether adequate cause exists and the Court of Appeals will reverse only if “no reasonable judge would have denied the petition without a hearing.”
Here, the Court of Appeals found that the family court considered Mother’s allegations and compared them to the allegations made in the previous petition and the subsequent court orders. Although it found a few novel allegations not previously alleged, it concluded that the family court might have reasonably believed those allegations, even if true, were insufficient to constitute substantial and continuing change and affirmed the family court’s dismissal of Mother’s petition to modify parenting time and child support.