Divorce and Parental Relocation – Sometimes a Tough Call

One of the more difficult decisions family court judges make involves parental relocation. “The vast majority” of relocation cases involve a move or proposed move by the primary physical custodian. The other parent, “who enjoys more traditional visitation rights,” objects, and in response “may also seek a transfer of primary custody.” In this routine, very often the primary physical custodian is the Mother, who is relocating because of marriage or a career move; the “other custodian,” as he is called, is the Father, who believes he is losing contact with his children.

Normally, courts require relocating parents to give notice to the other parent and the court.  Courts say nothing about relocations across town, but when the custodial parent moves 100 or more miles from the noncustodial parent, the relocation exerts an impact on that parent’s visitation. Moreover, such long-distance relocations make shared custody – that is, joint physical custody – impossible.

In general, courts look favorably on relocation because an improvement in the life the custodial parent is held to be “in the best interest of the child.” In general, courts approve relocations when the objecting parent cannot demonstrate that the move is being made in effort to punish him or her.

Legal observers divide the approaches courts take into three broad categories. They are as follows:

  • The liberal approach. Florida’s Supreme Court, “[a]cknowledging that relocation cases do not lend themselves to bright-line rules,” has adopted “a general policy favoring relocation so long as the primary custodian has a well-intentioned reason and is not motivated by a vindictive desire to interfere with the other parent’s custodial rights.”
  • The moderate approach. Others states require that a change of circumstances be demonstrated by showing that 1) “circumstances affecting the child have changed substantially since the prior order,” and 2) “the proposed modification is in the child’s best interest.”
  • The restrictive approach. “The New York Courts have taken the most restrictive approach of any state … to the issue of parental relocation. In cases involving sole custody, the courts do not permit a relocation that would interfere with the noncustodial parent’s visitation absent ‘exceptional or compelling circumstances.’”

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