Like most Arizona family court orders, child custody orders—specifically legal decision-making and parenting time—can be modified if circumstances change after entry of the orders. More precisely, Arizona law requires “substantial and continuing changes” to occur before a parent can modify child custody. There is no precise legal definition for what constitutes “substantial” or “continuing.” Substantial can be thought of to mean something important. Usually this means something that directly affects the best interests of the children subject to the child custody order. The word continuing means that the changes are expected to persist or continue, and not be temporary. An example of temporary change might be a situation where a parent has to travel for work, unexpectedly, one time during his or her parenting time. If this change occurs only once, it is not continuing and therefore probably does not justify modification of parenting time. Whenever there are substantial and continuing changes, the following steps explain how to modify child custody in Arizona.
1. Review the Current Child Custody Orders
Before filing to modify parenting time or legal decision-making, a parent should carefully review the current court orders for a couple of reasons. First, A.R.S. § 25-411 typically requires parents to wait at least one (1) year from the date the previous orders were entered before modifying parenting time or legal decision-making. There are a couple of exceptions, however. If there are emergency circumstances that endanger the children, parenting time or legal decision-making can be modified at any time. Additionally, legal decision-making can be modified after six months if the other parent fails to comply with the current order.
It is also to review the current orders to determine whether the family court imposed any additional requirements before modification. Many judges will require parents to attend mediation before they will set an evidentiary hearing to modify child custody orders.
Finally, there are special considerations if the existing court orders were entered in another state or if the child and/or parents relocated outside of Arizona after an Arizona court entered its orders. Interstate child custody jurisdiction is something that should always be discussed during a free consultation with experienced child custody attorneys.
2. File the Petition to Modify
Once eligibility to modify is confirmed, the next step is to file the petition. The procedure for filing a post-decree petition to modify is explained in Rule 91 and its subparts. Basically, the petition needs to include a copy of the current orders the parent seeks to modify, detailed facts to support modification, and a summary of what action the parent wants the family court to take, also referred to as the relief sought. It also should include an order to appear. The Maricopa County Superior Court offers forms for use or reference. All petitions to modify must be verified under Rule 14. Upon filing, the parent who filed the petition will be charged a filing fee. This fee is currently $89 in Maricopa County, though it may vary in other counties. The filing parent also may be eligible for fee deferral or fee waiver, depending on his or her financial situation.
Although not applicable to every case, when the circumstances necessitate more immediate court action, parents may consider whether a motion for temporary orders is appropriate. Keep in mind that the current orders are enforceable until they are modified. This means that both parents are expected to comply fully with the current orders while the modification is pending.
3. Serve the Petition
Post-decree petitions must be served along with the order to appear at least twenty (20) days before the hearing. Sometimes this simply is not possible as the hearing may be set to occur fewer than twenty days after filing. Be diligent and accomplish service as quickly as possible. Like other family law petitions, petitions to modify can be served by process server or by certified mail with return receipt requested. Certified mail is obviously more affordable but it requires the recipient parent to accept and sign for the envelope, something parents who anticipate litigation may be unwilling to do. A private process server tends to be the most effective way to accomplish service.
4. Attend Preliminary Hearing
Most Arizona family law judges set modifications for a preliminary hearing where the court tries to facilitate early resolution of the dispute. The scope of the judge’s power at a preliminary hearing depends on what type of hearing he or she sets. This information can be found in the minute entry that sets the hearing. If it is a resolution management conference, no evidence or testimony will be presented and no substantive orders will be entered unless the parties mutually agree. If it is a return hearing, the court may or may not invite testimony from the parties. Still, the court should not substantively modify parenting time or legal decision-making without affording both parents an opportunity to present evidence.
The real purpose of the preliminary hearing is to function as a scheduling conference. The court will discuss with the parties whether any additional services are appropriate and may set various deadlines such as the completion of disclosure and discovery. The judge has authority to order the parties to attend mediation or a parenting conference. The judge also can appoint a court-appointed advisor or best interests attorney, if appropriate, or order a parent to submit to drug or alcohol testing if substance abuse is at issue in the case.
5. Complete Rule 49 Disclosures
During any type of litigation, the parties are required to exchange certain documents and categories of information. This process is referred to as disclosure. Rule 49, subsection (d), establishes the minimum disclosure requirements in child custody cases. For convenience, the Rule 49(d) requirements are enumerated here:
(1) a copy of any past or current protective orders and underlying petitions involving a party or member of the party’s household;
(2) the name and address of each treatment provider and period of treatment involving any party for psychiatric or psychological issues, anger management, substance abuse, or domestic violence, occurring within 5 years before the petition’s filing;
(3) the date, description, location, and documentation of any criminal charge against or conviction of any party or member of the party’s household occurring within 10 years before the petition’s filing; and
(4) the date, description, location, and documentation of any Department of Child Safety investigation or proceeding involving any party or member of the party’s household occurring within 10 years before the petition’s filing.
Whenever parenting time is modified, the family court is required to address child support. If child support is at issue, Rule 49(e) requires parents to exchange:
(1) a fully completed Affidavit of Financial Information; and
(2) proof of income from all sources, including complete tax returns for the past 3 years; year to date pay stubs and any other documents necessary to show calendar year income from all sources; proof of court-ordered child support and spousal maintenance actually paid by the party in any other case; proof of all medical, dental, and vision insurance premiums paid to insure any children subject to the custody orders; proof of any child care expenses; proof of private school expenses or other educational expenses incurred; proof of any expenses related to the children’s unique needs.
Parents also must disclose the names and contact information for any witnesses they intend to call at trial.
6. Conduct Discovery
If more information is required from the other parent or from a third-party source, a parent can conduct additional discovery. Arizona family court litigants can use:
The goal of discovery requests should be to obtain information or evidence necessary to prove or disprove the allegations in the petition, depending which side of the case a parent is on. Discovery requests should not be used improperly to harass or unduly burden the other party. Rule 65 empowers the family court to sanction either parent for discovery misconduct. This includes refusing to timely answer discovery requests. Generally speaking, litigants have 40 days to answer discovery requests from the date of receipt.
7. File a Motion to Set Trial
Once discovery is completed, most family courts require a motion to set and certificate of readiness. This is a motion filed pursuant to Rule 77 to notify the judge that the case is ready for trial. The motion to set should include the names and addresses of the parties or their attorneys, indication that the case is entitled to preferential calendaring because it involves legal decision-making and/or parenting time, and the amount of time the parties believe is needed for trial.
If one parent files a motion to set and the other parent believes the case is not ready for trial, the other parent can file a response to object and explain why the case is unready.
8. Evidentiary Hearing / Trial
Consistent with the theme throughout these steps, it is extremely important to carefully review the minute entry where the judge sets trial. It will include important deadlines and additional instructions for submission of exhibits, pretrial statements, and other pretrial matters. Some judges prefer bench copies of exhibits. A bench copy is a binder that contains copies of each party’s exhibits. Some judges require bench copies to be delivered in advance and others require litigants to bring it the day of the trial.
This probably sounds self-explanatory, but do not miss deadlines. Exhibits not submitted in time may be categorically excluded at trial. This means a parent who delivers exhibits late may not be able to use those exhibits at all. The same is true about the pretrial statement. The pretrial statement is perhaps the most important document filed during child custody litigation. It contains a comprehensive summary of the critical facts, the parent’s arguments and all legal authority to support those positions. If a parent does not file a pretrial statement, he or she could be precluded from presenting any claims or defenses at trial.
During the trial, litigants should focus on the most important facts that support or oppose the modification, again depending on which side of the case the parent is on. Parents should not spend too much time with ancillary or irrelevant information because it can distract from the more important issues and waste valuable time. Only provide the information the court requires to fully understand your case.
Whether or not the parents are represented by attorneys, the quality of evidence (including witness testimony) determines the outcome of child custody cases. Arizona family law judges are required to make specific findings under A.R.S. § 25-403. Unrepresented litigants may find it helpful to organize and present evidence according to those specific factors.
It is crucial to introduce evidence properly, according to the applicable rules of procedure. Although exhibits are submitted to the court in advance of the hearing, this is only so that they can be marked and ready for the trial. This does not mean that exhibits submitted are automatically admitted into evidence. Litigants must move to admit each exhibit individually—it is not enough just to refer to the exhibit or even to read from it. If an exhibit is not admitted into evidence, it cannot be considered by the judge.
After a trial, the judge may enter his or her ruling or parts of a ruling immediately before anyone leaves the courtroom. But this is comparatively rare. More commonly, judges take the matter under advisement and publish a written ruling within sixty days.