This guide focuses on how to modify existing child custody orders. For parents who do not already have court orders, much of this information will be relevant but the process to establish child custody orders is slightly different.
Substantial and Continuing Changes
Court orders for legal decision-making and parenting time are not permanent in Arizona. Pursuant to A.R.S. § 25-411(A), either parent can file a petition to modify their current child custody orders any time “the child’s present environment may seriously endanger the child’s physical, mental, moral or emotional health.” This means that there is no other prerequisite to modify child custody when there is evidence of child abuse or neglect.
Thankfully endangerment is not always required to modify child custody. Sometimes things just change that make parenting plans no longer practical or best for the children. As early as one year after child custody orders are entered, either parent can modify legal decision-making and/or parenting time whenever there are “substantial and continuing changes” to circumstances that affect the best interests of the children.
Unfortunately, there is no exact legal definition for “substantial” or “continuing.” Substantial should be thought of to mean something that significantly impacts the children or the existing child custody orders. Continuing means that the new circumstance is expected to last a long enough period of time to justify modification of the court orders.
Reasons to Modify Child Custody
There are so many factors that affect parenting plans that it would be impossible to make a comprehensive list of reasons to modify. Any circumstance that endangers the children will always be a valid basis to change child custody orders. This obviously includes child abuse or neglect, and also substance abuse when it impairs a parent’s ability to care for the children. A parent who is intoxicated during their parenting time is presumptively unable to ensure the safety and wellbeing of the children.
It feels important to note that substance abuse, even illicit drugs, does not automatically make a parent unfit. When substance abuse is proven, family courts retain discretion to determine if it endangers the children. In an unpublished decision last year, the Court of Appeals affirmed the family court’s award of unsupervised parenting time and joint legal decision-making to a parent who tested positive for cocaine during the litigation.
Some other common reasons to change child custody orders include changes to schedules, living arrangements, schools, or jobs. As children grow up, their schedules change. They might participate in extracurricular activities that conflict with the parenting schedule or maybe they will be enrolled in a school farther from one parent’s home that makes the current schedule impractical. There really are endless permutations of circumstances that warrant modification. If you are unsure about your particular situation, take advantage of a free consultation with one of our child custody attorneys.
Petition to Modify
After you have confirmed your basis to modify, the next step is to file the appropriate petition. You can modify legal decision-making or parenting time separately if you believe only one needs to change, or you can modify both at the same time. Any time parenting time changes, the family court is required to recalculate child support. If you do not have an attorney, there are court forms you can use.
The procedure for filing any post-decree petition to modify is provided by 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.
It is not enough to simply say that substantial and continuing changes have occurred. You need to include specific factual allegations to support that conclusion. So if, for example, you believe the other parent is never physically present during their parenting time, you would include that allegation in your petition to modify.
When you file the petition, you will be charged a filing fee. The fee is currently $89 in Maricopa County and Pima County, though it may vary in other counties. You may be eligible for fee deferral or fee waiver, depending on your financial situation.
It can take a few weeks after you file your petition before any hearing is set. It can take even longer for the family court to decide whether to make any modifications. Until this time, the current orders remain enforceable. This means that both parents are expected to continue to comply with the current orders during this time. Sometimes waiting indefinitely is not an option. If your situation is more urgent, you may consider a motion for temporary orders. You can even request emergency temporary orders whenever the current orders would cause irreparable harm. This is a very difficult burden of proof and unsuccessful emergency motions can hurt your case. Although we understand it is not always possible, we strongly encourage you to consult with an experienced child custody attorney before taking any action. We offer same-day consultations and accommodate evening and weekend appointments when necessary.
Serve the Petition
Your petition to modify must be served with an order to appear pursuant to Rule 41. 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. If you requested temporary orders, the order to appear may need to be served a certain number of days before the hearing. These windows can be very tight so be diligent and accomplish service as quickly as possible.
When you modify child custody, you will have to go back to family court unless both parents agree to all of the changes. If you requested temporary orders, your first court appearance may be a brief trial. You will have very important deadlines before the hearing to submit evidence and a pretrial statement, if one is required. Your order to appear should contain all of these important dates.
If the case is not set for a temporary orders trial, it typically will be set for an early resolution conference or a resolution management conference. Both types of hearings encourage the parties to explore settlement for some or all of the contested issues. Usually there is no evidence or testimony presented at these hearings and no substantive orders will be entered unless the parties agree.
The judge may set deadlines for disclosure and discovery, order the parties to attend mediation or another type of alternative dispute resolution, appoint a court-appointed advisor or best interests attorney, and/or order either parent to submit to drug or alcohol testing if substance abuse is an issue in the case.
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.
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:
• requests for production;
• requests for admission;
• depositions; and/or
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.
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.
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 enter a written ruling within sixty days.