When a custodial parent relocates with a child, the move upends a sometimes already wobbly child custody situation. Relocation often leaves a struggling child in a long-distance relationship with a parent.
Marital breakdown means former spouses go separate ways and reconstruct their lives in distant places. Typically, a relocation dispute arises when the custodial parent — normally the parent of primary residence with whom the child resides — decides to move, and the visitation parent – the one left behind — refuses to agree to the relocation. Relocation disputes between parents frequently go the courts because both parents have guardianship and consent must be given when one decides to move with a minor child .
A judge facing a relocation custody and visitation decision makes a two-step analysis. First, the judge determines that the move is in good faith and for a legitimate reason. That means the move cannot be to interfere with or thwart parenting time with the other parent. The relocating parent carries a burden of proof that he or she has sound and cogent reasons — a better job opportunity, for example, or marriage. The circumstances of a good faith move are subjective and up to a court to determine because every family is different. After a court determines that the relocation is for a good faith and legitimate purpose, the judge determines what is in the best interests of the child — to go with the relocating parenting, or stay with the non-relocating parent.
Just because the relocating parent overcomes the first hurdle in the analysis does not mean he or she prevails on the whole case. Factors such as who is the child’s primary caregiver, the child’s age (the older and more independent and/or in school and friends, the more likely the child is tied to the community), the parent’s wishes, the child’s wishes – all come into play a role in the court’s decision. Some courts work on the assumption that a move that is good for the mother is also good for the child.
Moreover, some states require more detail, such as a statement describing a “good faith” reason for the move, especially if moving the child disrupts the child’s school, emotional, and social stability. Good faith reasons may include a better cost of living, a desire to be closer to one’s family to help with childcare responsibilities, and continuing one’s education.
Conversely, the court may object to a move based on “bad faith,” such as wanting to move far away from a former spouse in revenge or retaliation. In addition, some jurisdictions may also consider the noncustodial parent’s reasons for objecting. For example, if an objecting parent failed to regularly exercise his or her visitation rights and was otherwise an absent parent, a court may likely find in the custodial parent’s favor and allow the move.
In general, courts take a pragmatic approach to relocation, and although the move may be detrimental to the other parent who now has less contact with the child, life must go on. That is not to say that the courts do not consider the impact of the relocation of the left-behind parent. However, courts respect the freedom of movement and family life of relocating parents. In looking at what is in the best interests of the child, the court considers whether relocation is compatible with the child’s welfare.
The laws vary greatly among the states concerning child custody relocation. State laws often spell out requirements for relocating with a child, including rules concerning notice, consent, and presumptions.
Some states allow child custody relocation when the parents have signed an express consent to relocate and a proposed visitation schedule. This typically takes place during the original child custody proceedings and is usually contained within a clause in the child custody plan.
Some states require a custodial parent to give written notice of an intended move to the noncustodial parent within a certain time period specified in the statute, for example, 30, 60, 90 days.
Some states determine consider child custody relocation based on distance. For example, if the new location is within a certain distance (100 miles or more), even if within the same state, a court may consider it Other states consider any move out of the state a significant factor, even if it’s barely across state lines, and may prevent a move altogether.
In almost all states, the relocating parent must make a proposed new visitation schedule, including the times and places for visitation with the noncustodial parent. Often this includes extended access times during major holidays, spring breaks, and summer months.
In addition, because child custody relocation can work a substantial change in circumstances, the parties may also need to seek a court modification of custody or visitation order. In certain circumstances, such as joint custody situations, the court may need to reassess child custody between the parties altogether. The court may suggest the non-relocating parent take physical custody of the child to maintain as much stability.
In terms of increased travel costs, some states require a 50-50 split in increased costs; other states may require the moving spouse to incur most of the transportation costs related to visitation. Because the laws vary greatly from state-state, retaining an experienced lawyer may be a good idea.
Three Examples of Relocation Court Cases:
- The court rejected a mother’s application to relocate with her daughter despite finding that the decision to leave was bona fide. What the court found was that the practicalities of her decision to move were ill-researched and outweighed by the child’s need to not be separated from either parent.
- The court rejected a father’s application to relocate with his daughter. The relationship between the parents was acrimonious and, at the time of divorce, the father alleged that the mother had sexually abused their daughter. Based on this and various other factors, the court awarded care to the father. After several years, the father sought to relocate to Israel. Although the mother initially gave her consent because she was led to believe she would be allowed contact with her child, she later withdrew it when she realized that her belief was false. The court refused the relocation based on the fact that the father could not provide sufficient information about when and where he would be employed, where the child would be going to school and how she would be assisted to learn Hebrew. The court also found the father to be thwarting attempts by the mother to rebuild her relationship with her daughter. The court emphasized the fact that it was important for the mother and child to re-establish their relationship, and criticized the experts (psychologists) who had recommended the relocation for not considering all the facts.
- The court rejected a mother’s application to relocate with her four children, aged eleven and eight (triplets). The parents had been awarded joint care in the divorce settlement agreement, the intention being that the children would spend an equal amount of time with each parent. Three years after the divorce, the wife filed an urgent application in the High Court for variation of the care order: she sought an order declaring her the primary caregiver and granting her the authority to relocate the children from South Africa to Dubai to live with a new man whom she planned to marry. A social worker and a clinical psychologist commissioned by the mother recommended that she be granted primary care and permission to relocate. Experts not commissioned by her held a different view, finding that relocation would not be in the best interests of the children as they would miss their father, school friends and the city to which they were accustomed. The court found that the mother’s experts’ recommendations were based too heavily on financial issues and did not sufficiently take into account the bond that existed between the children and their father. The court relied, ultimately, on the children’s views, having found that they were of an age and maturity to make informed decisions. The mother’s application was dismissed as the court found that it was not in the children’s best interests.