Shifting Burden
Key Points
  • Make sure you understand your State’s laws regarding relocating with minor children.
  • There is case law that states the custodial bears the burden of proving relocating with the children is in the best interest of the child; other case law states it is the responsibility of the non-custodial parent to prove it is not in the best interest for the child to move.
  • We live in a more mobile society than we ever did, moving from one state to another is more commonplace. Relocating during or after divorce with children can still be an issue for the non-custodial parent.

A small number of jurisdictions have adopted what amounts to an intermediate standard between presumptively allowing the custodial parent to relocate and requiring the custodial parent to demonstrate that the proposed move is in the best interests of the child.

These jurisdictions have adopted a shifting burden of proof, first placing the burden on the custodial parent to establish the existence of a good-faith or legitimate reason for the proposed relocation. If the custodial parent meets this burden, then the noncustodial parent must establish that the move would adversely affect the child’s best interests.

This shifting burden of proof was employed by the Supreme Court of Connecticut in Ireland v. Ireland, 246 Conn. 413, 717 A.2d 676 (1998). Faced with the absence of any direct Connecticut statutory authority governing relocation requests, the court promulgated a shifting burden standard which the court concluded operated in furtherance of its "commitment to the best interests of the child standard." 717 A.2d at 680. The court noted that a custodial parent could have numerous legitimate reasons for relocating, such as obtaining new employment or remarriage, but could also have sinister motives designed to frustrate the relationship between the noncustodial parent and the child. Thus, the court placed the initial burden on the custodial parent to establish a legitimate reason for the move.

We conclude, therefore, that the custodial parent must bear the burden of proving, by a preponderance of the evidence, that the relocation is for a legitimate purpose and, further, that the proposed location is reasonable in light of that purpose. Id. at 682.

The court then turned to the issue of the best interests of the child. The court acknowledged that many jurisdictions placed the burden on the custodial parent to show that a proposed relocation was in the child’s best interests. The court concluded that the burden in these cases was misplaced for two reasons.

Our reasons are twofold. First, it should be presumed that when primary physical custody was entrusted to the custodial parent, the court making that determination considered that parent to be the proper parent to make the day-to-day decisions affecting the welfare of the child. In the absence of proof to the contrary, it should not be presumed that the custodial parent would choose to uproot himself or herself and the child and move to a distant location merely to frustrate the visitation schedule of the noncustodial parent. As with other important decisions regarding the child’s welfare, the custodial parent should be permitted to choose the best place for the parent and the child to live. Placing the burden on the noncustodial parent is consistent with the trust shown by the court in awarding primary physical custody in the first instance to the custodial parent. Second, as the party claiming that relocation would not be in the child’s best interests, it should be incumbent upon the noncustodial parent to demonstrate the reasons supporting that assertion. The noncustodial parent is the party most likely to have access to information such as distance, time or financial restraints that could impact his or her potential post-relocation visitation schedule. Additionally, the noncustodial parent is in the best position to prove that any change in the quantity or nature of contact between that parent and the child as a result of the move would be so detrimental to the best interests of the child that the relocation itself would not be in the child’s best interests. Id. at 682-83; cf. Bretherton v. Bretherton, 72 Conn. App. 528, 805 A.2d 766, 772 (2002) ("Therefore, the failure of the custodial parent to meet his or her initial burden cannot in and of itself end the matter in relocation cases. To predicate a decision whether to permit relocation on the basis of parental conduct only, even when that conduct appears unreasonable or illegitimate, would be to ignore the needs of the child and to reduce the court’s inquiry to assessing the parents’ action only").

This shifting burden of proof between the custodial parent and the noncustodial parent has also been adopted by statute in New Hampshire, the relevant portion of which reads as follows:

  1. The custodial parent seeking permission to relocate bears the initial burden of demonstrating, by a preponderance of the evidence, that:

    1. The relocation is for a legitimate purpose
    2. The proposed location is reasonable in light of that purpose

  2. If the burden of proof established in paragraph IV is met, the burden shifts to the non-custodial parent to prove, by a preponderance of the evidence, that the proposed relocation is not in the best interest of the child.

N.H. Rev. Stat. Ann. 458:23-a (2004); see In re Pfeuffer, 150 N.H. 257, 837 A.2d 311 (2003) (applying shifting burden statute; noncustodial parent met his burden to establish that proposed relocation was not in child’s best interests).

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Suggested Reading
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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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