Orders and stipulations regarding parenting time and legal decision making typically always are open to modification. The court recognizes that circumstances change as children grow older and time passes, and that a plan agreed upon by parents when a child is five may no longer be appropriate when the child is thirteen.
In order to request a modification in Arizona, at least one year must have elapsed between the current court order regarding legal decision making and/or parenting time. However, in situations where the present environment of the child could endanger his or her physical, mental, moral, or emotional health, the court will ignore the time requirement.
Either party may make a motion for the court to modify existing orders, and this motion typically is filed within the original action (meaning you will use the same case number you were originally assigned). The party who makes the motion is responsible for providing adequate notice to the other party, who will be allotted a time to file a response in opposition. If the parties are in disagreement about the provisions of the modification, the court will likely hold a hearing to determine how best to proceed. During these hearings the court may refer the parties to mediation (which may be compulsory if a mediation clause is built into existing court orders or the consent decree), or simply schedule a hearing to resolve the issues. In these hearings the burden of proof is upon the party seeking modification, and it is on them to prove that modification is within the best interests of the child.
The basis for modification of existing orders pertaining to legal decision making and parenting time is a substantial and continuing change in circumstances. Usually, the court will only look to facts that occurred after the original order went into effect, but they do have the option of viewing all facts and instances in order to make their determination.
As always, the overriding concern for the court is what is within the best interest of the child. In any opposed modification proceeding, it is important to have an attorney familiar with the process and capable of relating to the court how the modification sought will benefit not only the party seeking it but the child as well. The attorneys at The Carroll Law Firm offer professional representation and counsel in matters regarding family law modifications. Call us at (623)551-9366 to set up an appointment.
