The Question:
Can I file from a different state? I live in California. My daughter lives in her birthplace which is Arizona. I am paying child support and I want 50/50 custody of my child. I do not physically get to see her now. My child support payments take most of my check, so no traveling. I do video chat with her. She is 8 years old and always asks me when she can come over. I really need help, and I want to know if I can file the custody case in California instead of traveling way to Arizona
RJ Says:
The rules regarding which State should address custody and parenting time issues are contained in the “Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)”. This Uniform Act has been adopted by 49 states, including both California AND Arizona. The short answer is that the Court within the child’s “home state,” (the state where the child has lived with a parent for six consecutive months prior to the commencement of the proceeding) is the Court that is permitted to address custody and parenting time issues.
There is of course so much more to the UCCJEA, and there can be theories presented that do not necessarily involve the child’s “home state”. There is too much involved in the UCCJEA to discuss all possible theories in this public forum.
No matter WHERE you have to file, you should file. File. File. File now.
Mom does not have the right to unreasonably restrict your access, and if she continues to do so, she herself could suffer repercussions. Do not allow yourself to miss irreplaceable milestones and memories. With your initial “Complaint in Paternity”, also file a Petition for Temporary Orders. Such is the quickest manner of getting to see your Judge. OR, perhaps a strongly worded letter from an experienced attorney would convince Mom to act more reasonably.
Per A.R.S. §13-1302, a person commits custodial interference if, knowing or having reason to know that the person has no legal right to do so, the person . . . . “Before the entry of a court order determining custodial rights, takes, entices or withholds any child from the other parent denying that parent access to any child.”
Pursuant to Arizona law, your Judge will be required, consistent with the child’s best interests, to adopt a parenting plan that provides for both parents to share legal decision-making regarding their child and that maximizes their respective parenting time. There is no way to predict exactly what a Judge will do. Your goal would be to paint an overall picture of the life you can provide for the child compared to Mother’s. With most things being somewhat equal, our Courts certainly do order equal parenting time quite often. In fact, A.R.S. §25-403.02(B) requires the Court to adopt a parenting plan that provides for both parents to share legal decision-making regarding their child and that maximizes their respective parenting time (so long as such is in the child’s best interests).
With both parents living in different states, equal parenting time is not really possible with a child of school age. Instead, It is relatively common for one parent to have the child during school periods, and for the other parent to have the bulk of summer, spring breaks, and fall breaks, and at least half of Christmas. The Court would likely also allow additional access during some or all three-day weekends or other school breaks.
A qualified and experienced family law attorney can of course assist you in considering your options and then getting where you need to be. Most of us offer free consultations, in which your matter can be discussed in detail. That would be a great opportunity to discuss the specifics of your matter and develop a plan. I would encourage you to quickly schedule this free consultation.