Q: I have sole legal decision making and sole legal custody of my child. Can I move out of state with my child?
I have sole legal decision making and sole legal custody of my daughter. The mother only has phone contact and no parenting time. We want to move out of state to be closer to family. Am I allowed to move out of state with my daughter without the other parents permission. Mother is MIA and has a warrant out for her arrest. She has not contacted my daughter in over 4 months.
A:
The overall answer to your question is the most common lawyer answer of all (and also the most disappointing lawyer answer): It depends.
It depends on what your Court order says about her rights:
LEGAL DECISION-MAKING
Sole legal decision-making does not include the right to determine the parenting time schedule or approve your own relocation. By law, legal decision-making means "the legal right and responsibility to make all nonemergency legal decisions for a child including those regarding education, health care, religious training and personal care decisions." See A.R.S. 25-401(3). That generally means the right to pick the school, the doctor, the dentist, decide if the child needs counseling, and pick what church the child attends.
In contrast, parenting time and relocation are custody-level questions. The two of you either need to agree or a judge needs to decide the issue.
ARS 25-408(A) NOTICE
The other law that touches on your situation is A.R.S. 25-408. In particular, subsection (A) determines whether you must first give her notice of the move. That provision reads:
"A. If by written agreement or court order both parents are entitled to joint legal decision-making or parenting time and both parents reside in the state, at least forty-five days' advance written notice shall be provided to the other parent before a parent may do either of the following:
1. Relocate the child outside the state.
2. Relocate the child more than one hundred miles within the state."
The notice only applies where (1) the parties have joint legal decision-making ... you say you have sole legal decision-making, so as long as that's accurate, that provision is inapplicable, or (2) both parents reside in the state and are entitled to parenting time. This includes supervised parenting time.
I know Mom is MIA, but do you think she's still in Arizona? If so, and if the order awards her any kind of parenting time, I would send her the certified letter (don't forget: It must be return receipt) 45 days prior to your move. If she doesn't respond, you can go.
In sum, the notice really depends on (1) if she was awarded any type of parenting time and (2) if she still resides in Arizona.
You also have the option of filing a Petition to Relocate with the Court.
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