Relocation by Parent with Sole or Primary Physical Custody
Most relocation cases involve situations where one parent has been awarded sole custody or primary physical custody of a child. These cases fundamentally differ from those involving joint or shared physical custody.
Relocation cases may be filed either by the custodial parent seeking permission from the court to relocate or by the noncustodial parent in an attempt to block the proposed relocation. In resolving these disputes, jurisdictions often differ on the burden of proof involved and which party bears that burden. Generally, these jurisdictions all agree that a determination of the best interests of the child is essential; however, the states vary as to whose burden it is to establish whether a proposed relocation is in fact in the best interests of a child. Due to these differences, the outcome of a relocation case could fluctuate wildly depending on whether the burden is on the custodial or the noncustodial parent. In recent years, there has been a trend toward the application of a best-interests standard in resolving relocation cases, either by a court decision or by the enactment of a statute setting forth the applicable relocation standard. It should also be noted that the restrictive approach discussed in the 1996 article has been abandoned by all jurisdictions. See Tropea v. Tropea, 87 N.Y.2d 727, 665 N.E.2d 145, 642 N.Y.S.2d 575 (1996) (abrogating need to show "exceptional circumstances" before allowing relocation and adopting best-interests standard instead); Latimer v. Latimer, 2004 WL 1822753 (S.C. 2004) (abrogating presumption against relocation); cf. Ala. Code 30-3-169.4 (2004) (establishing rebuttable presumption that change in child’s residence is not in the child’s best interests).
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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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