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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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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