Provisions Against Relocation in Order
Often, the initial custody award will contain some provision addressing a custodial parent’s right to relocate with a child. Generally, these provisions place some kind of geographic restriction on where the custodial parent may live with the child and often provide for an automatic change of custody to the noncustodial parent if this restriction is violated. Sometimes, however, these provisions operate to preserve a custodial parent’s right to move, often setting forth which locations are acceptable.
The effect of these provisions varies wildly from state to state. Many courts have expressed disdain for these provisions as they amount to improper speculation concerning the possibility of future changed circumstances. This was the conclusion reached by the Georgia Supreme Court in Scott v. Scott, 276 Ga. 372, 578 S.E.2d 876 (2003).
Pursuant to a final decree of divorce, the parties were granted joint custody of their child, with the mother being awarded primary physical custody. The final decree also provided that if the wife ever relocated outside of Cobb County, Georgia, this move would be considered a material change in circumstances and custody of the child would automatically revert to the father. Although the mother was not planning on relocating, she still appealed the divorce judgment, arguing that the self-executing change-of-custody provision was invalid.
The Georgia Supreme Court agreed with the wife and reversed the trial court’s decision. The court noted the existence of several earlier decisions in which a self-executing change-of-custody provision was upheld based on a party’s relocation or remarriage. The court found, however, that these earlier decisions affirming self-executing provisions in the case of relocation or remarriage necessarily conflicted with Georgia law.
The court found that such a provision was contrary to the settled law that relocation or remarriage does not constitute a change of circumstances warranting a transfer of custody without more. Furthermore, the court found that the effect of such a provision was fatally inflexible and that such provisions "altogether ignore the best interests of the child at the time of the triggering event." 578 S.E.2d at 879. The court concluded that while self-executing change-of-custody provisions were not per se unlawful in Georgia, such a provision would violate public policy and, therefore, be unenforceable if it "fails to give paramount import to the child’s best interests." Id.
Numerous other courts have likewise concluded that such provisions barring relocation are not enforceable. See, e.g., Godwin v. Balderamos, 876 So. 2d 1169 (Ala. Civ. App. 2003) (agreement to keep child in a particular geographic location only dispositive of child’s best interests as long as the parties’ circumstances have not changed; agreement has no effect if it is no longer in the child’s best interests); In re Marriage of Seitzinger, 333 Ill. App. 3d 103, 775 N.E.2d 282 (2002) (provision that custody of child would change automatically upon relocation of parent did not take into account best interests of child at the time of the change); Zeller v. Zeller, 640 N.W.2d 53 (N.D. 2002) (provision in parties’ agreement incorporated into final divorce decree that father would automatically receive custody if mother transferred from North Dakota was unenforceable and attempted to usurp court’s authority to determine best interests of the child).
Other jurisdictions, however, have found that these provisions are valid and enforceable. For example, in Pointer v. Bell, 719 So. 2d 222 (Ala. Civ. App. 1998), the parties’ separation agreement that was incorporated into the final divorce decree contained a provision which required the mother, who had custody of the parties’ children, to reside within a 165-mile radius of Fort Payne, Alabama. The mother subsequently sought the court’s permission to be allowed to move with her new husband to Las Vegas, far outside of the 165-mile territorial restriction. The trial court rejected the wife’s request and enforced the territorial restriction contained in the parties’ agreement.
The Court of Civil Appeals of Alabama affirmed the trial court’s decision. The court noted that such restrictions could be upheld if they were in the best interests of the child. Id. at 223. The court also noted, however, that such restrictions may be subject to change if they no longer serve the child’s best interests. Id. at 223-24. The trial court had found that the mother’s evidence supporting her relocation request demonstrated that the possibility for an enhanced standard of living was tentative at best and that the move would negatively affect the father’s relationship with the child. The court concluded that the trial court did not abuse its discretion in determining that the territorial restriction still served the best interests of the child based on the evidence presented at trial.
While the court in Pointer enforced the territorial restriction provision, the court’s decision was guided by the fact that it found that the restriction still served the best interests of the child. Thus, although the court reached the opposite result from that of the court in Scott, both courts clearly look to the best interests of the child to determine whether a territorial restriction provision should be enforced.
For other cases enforcing provisions in initial custody orders imposing territorial restrictions see, e.g., Leeds v. Adamse, 832 So. 2d 125 (Fla. 4th Dist. Ct. App. 2002) (court had authority to include clause in final judgment requiring the mother to remain in the city of the children’s primary residence); LaChappelle v. Mitten, 607 N.W.2d 151, 163 (Minn. Ct. App.), cert. denied, Mitten v. LaChapelle, 531 U.S. 1011 (2000) (court could require mother to return to Minnesota as a condition of award of sole physical custody); and Tomasko v. DuBuc, 145 N.H. 169, 761 A.2d 407 (2000) (stipulation incorporated into final divorce decree which provided that mother would remain in New Hampshire acted as waiver of her constitutional right to travel).
Occasionally, the parties’ agreement or final order may contemplate the future relocation of the custodial parent. In general, such a provision, much like geographic restrictions, will not be enforced unless found to be in the child’s best interests. For example, in Savage v. Morrison, 262 A.D.2d 1077, 691 N.Y.S.2d 842 (1999), the parties entered into a separation agreement which provided that the mother, as the custodial parent, had the right to relocate with the child. Based on this provision, the mother argued that she was allowed to relocate to Pittsburgh with the parties’ child. Despite the express language of this provision, the New York Supreme Court, Appellate Division, Fourth Department, concluded that "[w]hile that provision in the agreement is a relevant factor to consider in determining the child’s best interests, it is not dispositive." 691 N.Y.S.2d at 843. Based on its finding that the mother would not be supportive of the father’s continued relationship with the child if the relocation was allowed, the court held that the proposed relocation was not in the child’s best interests.
Furthermore, some states have enacted statutes which recognize the presumptive validity of territorial restriction provisions when contained in an agreement between the parents or in a valid parenting plan. Representative of these statutes is Ariz. Rev. Stat. Ann. 25-408 which reads as follows:
Ariz. Rev. Stat. Ann. 25-408(I) (2004); see also Kan. Stat. Ann. 60-1610 (2004) (parties’ agreed parenting plan presumed to be in child’s best interests). While these statutes provide that territorial restriction provisions are presumptively valid, the scope of these statutes is also circumscribed by the best interests of the child.
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STAYING PUT-- Many parents attempt to live in proximity at the onset of their divorce, so the issue of relocation -- generally defined as more than an excursion distance, or 100 miles -- comes up after the parents have been divorced for some time. A change in a career or job placement is often the primary cause for relocation. A distance relocation at the time of divorce (or shortly thereafter) is often a desire by the custodial parent to return to his or her hometown to be with family.
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