Relocation as Factor in Initial Custody Awards
Key Points
  • Be cautious when attempting to propose any relocation clauses in a settlement agreement, especially if relocation is probable. This issue may be considered when the judge considering a primary custody award.
  • Even if you move prior to the divorce being final, the standard of best interest of the child is applied when custody is awarded to either parent.
  • Relocation is not always denied in custody issues, there are other issues considered when awarding custody in divorce actions.

In divorce or dissolution cases, a party’s proposed relocation may also be considered a factor in determining the initial custody award. Generally, the fact that one party plans on leaving or has already left the state does not control the outcome of an initial custody award, but is only one of many factors used by a court in fashioning a custody award that is in the best interests of the child and does not serve to create a presumption in favor of awarding custody to the non-relocating parent.

In Barney v. Barney, 301 A.D.2d 950, 754 N.Y.S.2d 108 (2003), the New York Supreme Court, Appellate Division, Third Department, awarded primary physical custody of the parties’ child to the mother despite the fact that the mother had moved to Vermont with the child after the parties separated. The court held that the effect of the mother’s relocation must be a factor in awarding custody. "Where, as here, one parent moves prior to a custody determination, the effect of the move is certainly a factor in the best interests analysis." 754 N.Y.S.2d at 110. The court found that the evidence presented at trial supported a finding that it was in the child’s best interests to award the mother custody. The child was more closely bonded to the mother than the father and the child had enjoyed educational and social advantages in her new home.

Similarly, in Ford v. Ford, 68 Conn. App. 173, 789 A.2d 1104, certif. denied, 260 Conn. 910, 796 A.2d 556 (2002), the Appellate Court of Connecticut affirmed the decision that it was in the best interests of the child to award the mother custody and to allow her to relocate to Massachusetts. The court noted that the applicable standard in post-divorce relocation cases does not apply to initial custody determinations. "[R]elocation issues that arise at the initial judgment for the dissolution of marriage continue to be governed by the standard of the best interest of the child as set forth in 46b-56." 789 A.2d at 1111.

A parent’s decision to relocate is generally only one of numerous factors used to determine the child’s best interests. However, in cases where the parents are both equally fit custodians, one parent’s decision to relocate may become the deciding factor in an initial custody award.

Such an outcome occurred in Davis v. Davis, 356 S.C. 132, 588 S.E.2d 102 (2003), where the South Carolina Supreme Court found it was in the child’s best interests that the father be awarded custody in light of the mother’s stated intention to relocate from Aiken, South Carolina, to another city in South Carolina. Both parties were found to be fit custodians and the issue of who should be awarded custodian "was an extremely close question." 588 S.E.2d at 103. The court concluded that the mother’s decision to move could be considered a factor in determining the initial custody award. The court also held that while generally the mother’s decision to relocate would only be one of many factors in determining the best interests of the child, "[i]n cases where custody is a close question, as here, it may become the deciding factor." Id. at 104. The court found that where it was in the child’s best interests to remain in Aiken, custody should be awarded to the father.

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REAL ADVANTAGE THEORY -- 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. The defense for the estranged parent would be to prove to the court the move is more detrimental to the child's future than any advantage gained by the custodial parent.

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