Relocation of the Custodial Parent

The relocation of a child makes custody volatile, particularly when a child is moved a great distance.

Relocation is heart-wrenching because if a custodial parent moves to a different state, the noncustodial parent often becomes odd man out. In the wake of a relocation, the noncustodial parent often drifts away from the life of his or her child.

Courts struggle to balance the custodial parent’s constitutional right to travel against the state’s responsibility to protect the child. A good faith move by a custodial parent will be approved by most courts, particularly when the parent has sole custody. In this, the courts apply the logic of what is called the “real advantage” theory, which holds that a move that is good for the parent is good for the child, for example, when it is in conjunction with a career move or a new marriage.

In general, courts permit the custodial parent to relocate with the child if

  1. the relocation is being done in good faith;
  2. the child’s best interest is not adversely affected, and
  3. the other parent can maintain a relationship with the child after the move.

In practice, in order to oppose relocation, the noncustodial parent must demonstrate that the move is not in good faith and not in the best interest of the child.

Courts may consider what is called “a feasible visitation schedule for the non-custodial parent, ” but when the child is moved more than an excursion distance – say 100 miles – very likely the noncustodial parent is going to believe that he or she is being treated unfairly.

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