MOVING FORWARD: A SUMMARY OF ARIZONA RELOCATION LAW

This article is provided by the Gilbert Relocation Lawyers at Wilson-Goodman & Fong, P.C.

When a relocation dispute arises between the joint custodians of a minor child, a reviewing court is controlled by the provisions of Ariz. Rev. Stat. § 25-408 and the parents’ decree of dissolution, to the extent that it addresses the issue. Note that it is common for a decree to forbid either parent from taking the child out of the state of Arizona for more than a short duration of time and/or will typically prohibit either parent from relocating out of state with the child absent consent from the other parent or a court order.

This is where Ariz. Rev. Stat. § 25-408(H) comes into play. It states, in pertinent part, that “The court shall not deviate from a provision of any parenting plan or other written agreement by which the parents specifically have agreed to allow or prohibit relocation of the child unless the court finds that the provision is no longer in the child's best interests. There is a rebuttable presumption that a provision from any parenting plan or other written agreement is in the child's best interests.” This is the relocating parent’s first hurdle: rebut the legal presumption that the parties’ prohibition on relocation is in the child’s best interests.

Ariz. Rev. Stat. § 25-408(G) presents the next hurdle: “The burden of proving what is in the child's best interests is on the parent who is seeking to relocate the child.” The common thread in both statutory sections is clear: relocation must be in the best interests of the child. Indeed, “The court shall determine whether to allow the parent to relocate the child in accordance with the child's best interests.” Ariz. Rev. Stat. § 25-408(G). Again, although the court must ultimately make a decision that is in the best interests of the child, it is the relocating parent who has the burden of not only demonstrating that the proposed relocation is such, but also overcoming the statutory presumption that a decree prohibiting relocation is what in the child’s best interests.

For the relocating parent to meet their burden, they must demonstrate that the relocation is in the child’s best interests according to, first, the factors enumerated in Ariz. Rev. Stat. § 25-408(I):

1. The factors prescribed under section 25-403.

2. Whether the relocation is being made or opposed in good faith and not to interfere with or to frustrate the relationship between the child and the other parent or the other parent's right of access to the child.

3. The prospective advantage of the move for improving the general quality of life for the custodial parent or for the child.

4. The likelihood that the parent with whom the child will reside after the relocation will comply with parenting time orders.

5. Whether the relocation will allow a realistic opportunity for parenting time with each parent.

6. The extent to which moving or not moving will affect the emotional, physical or developmental needs of the child.

7. The motives of the parents and the validity of the reasons given for moving or opposing the move including the extent to which either parent may intend to gain a financial advantage regarding continuing child support obligations.

8. The potential effect of relocation on the child's stability.

Excluding factor (1), which will be addressed shortly, Ariz. Rev. Stat. § 25-408(I) presents seven distinct factors that must be weighed in arriving at a conclusion about a proposed relocation. None of these factors are individually controlling; all of them should be weighed collectively. Pollock v. Pollock, 181 Ariz. 275 (Ariz. Ct. App. 1995).

Ariz. Rev. Stat. § 25-408(I)(1), in applying “The factors prescribed under section 25-403,” also adds an additional burden on the parent seeking relocation. Ariz. Rev. Stat. § 25-403(A) prescribes ten additional factors that must be weighed:

1. The wishes of the child's parent or parents as to custody.

2. The wishes of the child as to the custodian.

3. The interaction and interrelationship of the child with the child's parent or parents, the child's siblings and any other person who may significantly affect the child's best interest.

4. The child's adjustment to home, school and community.

5. The mental and physical health of all individuals involved.

6. Which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent.

7. Whether one parent, both parents or neither parent has provided primary care of the child.

8. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding custody.

9. Whether a parent has complied with chapter 3, article 5 of this title.

10. Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02.

Combining § 25-408(I) with § 25-403(A), the parent seeking relocation has an exhaustive list of seventeen (17) factors that must addressed and weighed in proving to the court that the relocation is in their child’s best interests; this is an even more substantial burden than must be met in a typical custody case. A parent seeking relocation would be wise to keep that in mind when making the personal choice about whether they intend to move out of Arizona with a child that also has another joint custodian.

If you have any additional questions regarding relocations or any other divorce or family law issue please visit our website at www.wgandf-law.com.

Arizona Supreme Court Ruling Makes it Easier to be Convicted of a DUI

Article provided by the Phoenix Criminal Defense Lawyers of Bruce Blumberg & Associates.

Defining "Actual Physical Custody" under Arizona Law

Arizona's driving under the influence (DUI) statute makes it a crime to either drive a vehicle while over the legal limit or to be in "actual physical custody" of a vehicle while over the legal limit. The language "actual physical custody" was added to the DUI statute in 1950. Since that time, Arizona courts have been grappling over how best to define what this means.

Under previous law, courts found that people could be successfully convicted of a DUI when they were in control of the vehicle but not actually driving it or having the car in motion. For example, if the driver was pulled over in a traffic lane and found sleeping with the car still running, the driver could be charged with a DUI. But if the driver was completely pulled off of the road and out of traffic, with the motor turned off, and the keys inaccessible, the driver could not be found guilty of a DUI.

Thus, the distinguishing facts for determining whether a driver had actual physical control over the vehicle were: whether the vehicle was in a lane of traffic and whether the driver had immediate access to a vehicle with the engine running.

In 1995, the Arizona Supreme Court changed the standard and ruled that whether or not a driver could be found in actual physical custody of the car depended on the "totality of the circumstances" — which meant juries were to look at all of the available facts, not just where the car was located and whether the car was turned on. The Court also provided examples of some of the factors that should be taken into account to make this determination (State v Love, 182 Ariz. 327 (1995)).

State v Zaragoza

The totality of the circumstances standard seemed to confuse courts all the more, resulting in inconsistent rulings. In State v Zaragoza, the Arizona Supreme Court decided to once and for all define what it means for a driver to be in actual physical custody of a car for purposes of being convicted of a drunk driving charge.

In Zaragoza, the police were called to an apartment complex where they saw the defendant, Vincent Zaragoza, stumbling in the parking lot and eventually getting into a car. The police then pulled up behind Zaragoza's car and shined their flashlights into the car. Zaragoza had one hand on the steering wheel and the key had been inserted into the ignition, but the car had not yet been started. Zaragoza argued that he was going to sleep in his car that night and was going to turn it on to roll down the windows and turn on the radio.

It was later discovered that Zaragoza had a revoked driver's license and a blood alcohol content of .357 at the time he was arrested. Since Zaragoza was not driving the vehicle at the time of his arrest, it came down to a question of whether or not he was in actual physical control of his car. The jury found that he was and convicted him of two aggravated DUIs, one for having a revoked license and the other for having a BAC greater than 0.08 with a revoked license.

On appeal, Zaragoza had his conviction overturned. The appellate court found that the trial court's instructions to the jury on the question of actual physical control were misleading. The trial court instructed the jury to find Zaragoza in actual physical custody of the car if his potential use of the car presented a real danger to himself or others. The appellate court objected to the phrase "potential use," reasoning that it allowed the jury to convict Zaragoza if he hypothetically could have exercised control over the car and harmed someone.

The Arizona Supreme Court, however, did not agree with the appellate court's ruling and upheld Zaragoza's conviction by the trial court. In its opinion, the Court stated that the jury still had to find that Zaragoza presented a real danger to himself or others and not a hypothetical or potential danger.

Factors for Finding "Actual Physical Control"

In Zaragoza, the Arizona Supreme Court also gave guidance on what it means for a person charged with a DUI to be in actual physical control of the vehicle. According to the Court, to be in actual physical control means that juries should consider the totality of the circumstances to determine "whether the defendant's current or imminent control of the vehicle presented a real danger to himself or herself or others at the time alleged." Thus, the Court changed the language from "potential use" to "current or imminent control" over the vehicle.

The Court also provided examples of some of the factors juries should consider when deciding if a defendant had actual physical control over a vehicle:

· Was the vehicle running?
· Was the ignition on?
· Where were the car keys located?
· Where and in what position was the driver found?
· Was the driver awake or asleep?
· Were the car's headlights on or off?
· Was the vehicle stopped?
· Did the driver voluntarily pull off the road?
· What was the time of day?
· What were the weather conditions?
· Was the heat or air conditioner on?
· Were the windows up or down?
· Was there any explanation for the circumstances shown by the evidence?

Conclusion

The decision in Zaragoza reinforces the seriousness of DUI charges in Arizona. Not only can you be found guilty of violating the state's drunk driving laws by driving a vehicle while intoxicated, you also can be found guilty if a jury finds you were in actual physical control of the car — which could be the case even if the vehicle was not still in a lane of traffic, not in motion or not even turned on. So long as the jury finds that you had "current or imminent control" over the vehicle and presented a "real danger" to yourself or the public, you can be convicted of a DUI.

Please visit our Web site at http://www.azblumberglaw.com/.

Peer Nominated Site of the Month!

Congratulations to Gilbert Divorce Attorney John Bednarz on winning site of the month for June. Every month FindLaw nominates ten newly released custom designed sites and then out of the ten selected two winners are chosen. There is a field chosen winner and the other is a peer nominated winner. So congratulations are in order for Chris DesLauriers as well as he designed John Bednarz site and was picked as a winner by his peers. I know both designs that won are a great testament to the work each of the designers did, but to be chosen as the best by your fellow designers who know how hard it is to come up with new and fresh designs is a really nice accomplishment. Job well done Chris and congratualtions to John for this award.

You can view John's site at and Chris' work at www.johnbednarzpc.com.