Relocation by Parent with Alternating or Shared Physical Custody

Another issue that arises with some frequency in relocation cases is a parent’s right to relocate when the parents truly share physical custody of the child. In general, courts addressing relocation requests in joint physical custody cases treat the request as one for a change in custody and treat it accordingly. These cases hinge on whether the parties actually share physical custody of the child; a joint legal custody arrangement with one party acting as the primary physical custodian is not generally sufficient to invoke this higher standard of review.

A representative decision involving a truly shared custody arrangement is O’Connor v. O’Connor, 349 N.J. Super. 381, 793 A.2d 810 (App. Div. 2002). In O’Connor, the parties executed a separation agreement in which they agreed that they would have joint custody of their child. The parties agreed that the mother would serve as the child’s residential custodian, with the husband receiving liberal parenting time. The parties’ agreement was subsequently incorporated into a final decree of divorce. After the divorce, the father played an active role in the child’s life, picking him up from school several days a week and keeping the child in his custody until the evening and sometimes overnight. The mother was also required to travel for her employment, and during her trips the father would have custody of the child.

The mother began dating a man who lived in Indiana and she planned to remarry and move to that state. The mother’s employer agreed to allow the mother to work out of its Indiana office. The father petitioned for a restraining order to prevent the mother’s relocation. The trial court ultimately concluded that the parties had shared custody of the child and ordered that the father would be the residential custodian. In reaching this decision, the trial court found that the parties’ shared parenting arrangement did not require the court to apply the normal standard for resolving relocation disputes.

The Superior Court of New Jersey, Appellate Division, affirmed the trial court’s decision, holding that a petition to relocate in the context of a truly shared custody arrangement must be treated, instead, as a petition to modify custody.

The initial inquiry centers on the nature of the custodial relationship between the parents and the child. Where the parents truly share both legal and physical custody, an application by one parent to relocate with the child to an out-of-state location is analyzed as an application for a change of custody. Under such circumstances, the party seeking the change in the custodial relationship must demonstrate that the best interests of the child would be better served by residential custody being vested primarily with the relocating parent. 793 A.2d at 821-22. The court stated that this concern with the nature of the parties’ custodial arrangement was not dependent on the terms used by the parties to describe their arrangement as the terms of their agreement and the divorce judgment indicated that the parties only had joint legal custody. The court held that the applicable question was "whether these parties truly share both legal and physical custody." Id. at 822. In order to determine if such a shared custody arrangement existed, the court stated that the critical factor in making such a determination is the division of time regarding "each party’s responsibility for the custodial functions, responsibilities and duties" normally performed by the child’s primary caretaker. Id. at 823.

Turning to the facts of the case, the court noted that the trial court made detailed findings that established that the parties shared "primary custodial responsibilities" including:

  • transporting the child to and from school
  • attending the child’s school activities and sporting events
  • helping the child with homework
  • preparing the child’s meals
  • caring for the child overnight
  • attending to the child’s medical needs

Id. at 824. The court concluded that the trial court’s findings that the parties truly shared custody of the child were supported by the record, and, therefore, the trial court was correct in not applying the traditional relocation analysis to the parties’ unique custody arrangement.

For other cases holding that proposed relocation requests which would result in the effective termination of a shared physical custodial arrangement should be treated as a modification of custody, see, e.g., Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (2002) (both mother and father petitioned for sole custody of children after mother’s proposed relocation would make parties’ shared physical custodial arrangement unworkable; court found that mother’s relocation constituted material change of circumstances warranting award of sole custody to father, even though such a relocation would not be considered a material change in circumstances in a case that did not involve shared physical custody), and In re Marriage of Garst, 955 P.2d 1056 (Colo. Ct. App. 1998) (cases in which parties share physical custody are indistinguishable from initial custody awards; thus, best interests of child would control any request for relocation by parent). See also Tenn. Code Ann. 36-6-108 (2004) (where parents are spending substantially equal amounts of time with child, no presumption in favor of either parent arises when one parent seeks to relocate).



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PRESUMPTION IN FAVOR OF RELOCATION -- In many states, such as Arkansas, the court favors allowing relocation of the custodial parent. A majority of states, including New York, decide relocation requests based on the best interest of the child. A few states, such as Connecticut, have a neutral approach, a middle ground approach. Both the custodial parent and the non-custodial parent have the burden of demonstrating why relocation should or should not be permitted.

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