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The Divorce Encyclopedia
Relocation (Removal) of a Minor Child

Term Definition Relocation (Removal) of a Minor Child - a legal action, usually brought about by complaint or petition, by the custodial parent to move (or remove) a minor child from a state.
Application in Divorce No facet of a divorce is more volatile than child custody, particularly when a child is removed a great distance from the home and the environment he or she knew when his or her parents were married. Relocation and removal of a child often causes the noncustodial parent, usually the father, to drift away from the life of his child.

The relocation and removal of children has become an issue more and more frequently seen by courts because of the increasing mobility in American life.

In relocation and removal of a child, courts in general balance the custodial parent’s constitutional right to travel against the state’s interest in protecting the best interest of the child. Courts have viewed relocation disputes differently when the relocating parent has sole or primary physical custody than when that custody is shared or joint (and often been more likely to approve the moves of the former than the latter).

That said, courts permit the custodial parent to remove a child, based on the idea that what is good for the parent is also good for the child, (sometimes called the "real advantage" theory).

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

For the sake of the children, many couples attempt to live in proximity to one another at the onset of their divorce; so the issue of relocation typically comes up after the parents have been divorced for some time. Very often the impetus for the move is a career change or the fresh start of a new marriage.

If possible, lawyers advise the custodial parent who plans to relocate to discuss these plans with his or her lawyer at the time of the divorce. On veteran matrimonial lawyer advises that this applies to moves of 100 miles or more within the state or moves out of state.

Courts do not have a fixed definition of long distance. Relocation of 100 or fewer miles generally may not be an undue hardship because it permits visitation on an excursion basis. Beyond 100 miles, however, the proposed relocation can have an impact on child and spousal support, legal and physical custody and property distribution because the courts recognize that the relocation fundamentally changes the relationship between the child and the noncustodial parent, particularly the costs of visitation. The costs incurred by the noncustodial parent to exercise visitation are now taken into consideration and may become the responsibility of the custodial parent.

Beyond 100 miles, the very quality of the relationship between a child and his or her noncustodial parent will be markedly different because the exercise of visitation will be difficult, if not impossible. Weekly visitation rights don’t mean much if one parent removes a child so far from the other that the non custodial parent cannot reasonably exercise them without a heroic effort.

The long-distance relocation of a minor child can work to the disadvantage of a noncustodial parent, whose involvement in the parenting of the child becomes less frequent. Email and the telephone are a poor substitutes for face-to-face contract and shared experiences that are the stuff of memories for both parent and child. The relocation of children by custodial mothers has helped fuel what is known as the "father’s rights" movement.

Different states apply different standards to relocations. In general, in custody cases involving shared or alternating physical custody permission to relocate is more difficult to obtain.

In this and so many other areas of family and divorce, the relocation of a child evokes in a judge the agonies of King Solomon, and if at all possible, it is best for the parents, not the court, to work out child custody. Unless there is a compelling reason otherwise, it is in the best interest of all children to have both parents in their lives.

See also Father’s Rights.

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