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Child Relocation: Noncustodial Parent's Petition to Modify Custody
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A. Changed Circumstances Standard
In addition to attempting to prevent relocation, the noncustodial parent often petitions to transfer custody when the custodial parent seeks permission to move. As the noncustodial parent is seeking to modify the relevant custody award, his or her petition is treated in the same manner as any other request for modification, as opposed to the standards discussed above typically applied in relocation cases.B. Endangerment Standard
The majority of states require that a parent seeking to modify a custody award establish that there has been a material change in circumstances since the custody order was entered or last modified. Jeff Atkinson, Modern Child Custody Practice 10-5 (2d ed. 2004). Moreover, even if a change in circumstances exists, modification will only be allowed if it is in the best interests of the child. Id.
There is a decided split among jurisdictions concerning whether the custodial parent's relocation automatically constitutes a material change in circumstances. Many jurisdictions have held that the relocation of the custodial parent does not necessarily constitute a change in circumstances. This was the position espoused by the South Carolina Supreme Court in Latimer v. Farmer, 2004 WL 1822753 (S.C. 2004). The father, who was awarded sole custody of the parties' child, obtained a new job in Michigan and moved there with the child and his new wife. The mother petitioned to block the father's out-of-state relocation and also sought a transfer of custody of the parties' child.
The court noted that in order to grant the wife's request for a change in custody, the wife must first establish that a material change in circumstances had occurred and that the proposed custody modification was in the best interests of the child. The court found that the wife wholly failed to meet her burden. The court found that the father's relocation alone did not constitute a change in circumstances.
We decline to hold relocation in itself is a substantial change in circumstance affecting the welfare of a child. Relocation is one factor in considering a change in circumstances, but is not alone a sufficient change in circumstances. One location may not necessarily affect the best interests of the child as would another. The effect of relocation on the child's best interest is highly fact specific. It should not be assumed that merely relocating and potentially burdening the non-custodial parent's visitation rights always negatively affects the child's best interests. Id. at *3. Although not necessary after finding no change in circumstances, the court also concluded that the wife failed to show that transferring custody to the mother was in the best interests of the child. The court found noticeable benefits for the child from the father's move and that the child's best interests would be served by allowing the move.
For other cases holding that the relocation of a custodial parent does not necessarily constitute a material change in circumstances, see Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653, 657 (2003) ("[R]elocation of a primary custodian and his or her children alone is not a material change in circumstance."); Botterbusch v. Botterbusch, 851 So. 2d 903, 905 (Fla. 4th Dist. Ct. App. 2003) (same); and Evans v. Evans, 138 N.C. App. 135, 530 S.E.2d 576 (2000) (same).
The court's decision in Latimer also makes clear that even if a proposed relocation is considered a material change in circumstances, a noncustodial parent still must establish that a transfer of custody is in the child's best interests. Thus, the father's petition to transfer custody in In re Marriage of Colson, 183 Or. App. 12, 51 P.3d 607 (2002), was properly denied where the court held that he failed to establish that the award of custody was in the child's best interests even though the mother's out-of-state relocation could be considered to be a change in circumstances. The court emphasized that the child's need for stability demonstrated that it was in the child's best interests to remain in the mother's custody.
Other states have reached the opposite conclusion and have held that the relocation of the custodial parent always constitutes a material change in circumstances. As a result, these jurisdictions immediately proceed to determining whether the transfer of custody is in the child's best interests, as the requisite material change in circumstances is already established by operation of law. Often, these states have enacted statutes setting forth this rule. A typical example of these types of statutes is Iowa Code Ann. 598.21, which reads as follows:
If a parent awarded joint legal custody and physical care or sole legal custody is relocating the residence of the minor child to a location which is one hundred fifty miles or more from the residence of the minor child at the time that custody was awarded, the court may consider the relocation a substantial change in circumstances.Iowa Code Ann. 598.21(8A) (2004); see also Me. Rev. Stat. Ann. tit. 19-A, 1657 (2004); Mo. Ann. Stat. 452.411 (2004). In other jurisdictions, the courts have adopted this rule even in the absence of any statutory authority. See, e.g., Hamilton v. Hamilton, 42 P.3d 1107, 1115 (Alaska 2002) ("A custodial parent's decision to leave Alaska with the children constitutes a substantial change in circumstances.").
Regardless of whether this rule has been adopted by the courts or by statute, parties seeking a transfer of custody are still not excused from showing that the requested transfer is in the best interests of the child. In Weaver v. Kelling, 53 S.W.3d 610 (Mo. Ct. App. 2001), the mother's out-of-state relocation served as a material change in circumstances. However, the court found that the father failed to prove that transferring custody of the parties' children to him was in their best interests and, therefore, denied his petition.
A handful of states follow what is known as the "endangerment standard" in determining whether to modify child custody. Atkinson, supra, 10-4. This standard is used in jurisdictions that have adopted the Uniform Marriage and Divorce Act. Some states require only a showing that "[t]he child's present environment may endanger seriously his physical, mental, moral, or emotional health" before custody may be modified under the endangerment standard. Ky. Rev. Stat. Ann. 403.340(2)(a) (2004). Other states require this showing of harm in addition to proving both the existence of a material change in circumstances and that any modification is in the child's best interests. Colo. Rev. Stat. Ann. 14-10-131 (2004). Thus, under the endangerment standard, a custodial parent's decision to relocate will not result in a transfer of custody unless the noncustodial parent can show that the harm caused by the child's new environment is outweighed by the advantage to the child in modifying custody. See Fenwick v. Fenwick, 114 S.W.3d 767 (Ky. 2003) (endangerment standard applied in relocation cases; fact that relocation would affect frequency of father's contact with children did not demonstrate that relocation would result in serious harm to the children); In re Marriage of Steving & Brown, 980 P.2d 540 (Colo. Ct. App. 1999) (applying endangerment standard, court rejected father's petition for custody in light of mother's relocation).
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