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STABILIZING FAMILIES IN A MOBILE SOCIETY: RECENT CASE LAW ON RELOCATION OF THE CUSTODIAL PARENT
1996 National Legal Research Group, Inc.

Few domestic relations cases present such difficult and intense issues as child custody cases involving relocation of the custodial parent. As the New York Court of Appeals recently observed in a major decision on this subject:

Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d 575, 578 (1996). The Nevada Supreme Court stated in a recent case that "[o]ne of the tragic aftermaths of the dissolution of families is that the environmental, physical, and temporal relationships between parents and their children must change in ways that tear at the heartstrings." Cook v. Cook, 111 Nev. 73, 898 P.2d 702, 707 (1995). No doubt, the parties and their counsel in such cases would agree.

To assist practitioners with these difficult cases, our main article this month examines recent decisions from around the country that involve relocations by custodial parents. We will consider not only cases involving custodial parents with traditional sole custody, but also cases involving various forms of joint custody. The joint custody cases will be further broken down into joint legal custody and joint physical custody. Where the child is in joint legal custody, the parents share the legal rights and responsibilities of parenthood, but primary physical custody is with one parent. Joint legal custody differs from sole custody in that the child generally spends more time with the noncustodial parent where joint legal custody is involved. Where the child is in joint physical custody, the child actually alternates substantial residential time between the two parents. Some sources refer to this second type of joint custody as "shared" or "alternating custody." As might be expected, the specifics of all types of joint custody arrangements vary considerably from case to case.

I. INTRODUCTION

Relocation of the custodial parent is an issue that has existed since the earliest days of divorce law. In the past, relocation cases did not arise often because most people lived out their lives in the same general area. Over the last two decades, however, as divorce has become more common and society more mobile, relocation cases have occurred with increasing frequency.

Statutory vs. Common Law Authority

Some states have handled the increasing number of relocation cases through traditional common law means. In other states, however, special statutes have been enacted to govern relocation cases. See, e.g., 750 Ill. Comp. Stat. Ann. 5/609 (1993); Mass. Gen. Laws Ann. ch. 208, 30 (West 1987); Nev. Rev. Stat. Ann. 125A.350 (1992); N.J. Stat. Ann. 9:2-2 (West 1993). In addressing any relocation issue, therefore, the first step is to check for an applicable state statute. In the absence of a statute, of course, the courts have common law authority to prevent the relocation. See Macek v. Friedman, 240 N.J. Super. 614, 573 A.2d 996 (App. Div. 1990).

Constitutional Concerns

The issue of relocation has undeniable constitutional implications. The United States Supreme Court has recognized that the right of an individual to travel freely throughout the country is protected by the Constitution. E.g., Jones v. Helms, 452 U.S. 412 (1981); Shapiro v. Thompson, 394 U.S. 618 (1969). As the Montana Supreme Court recognized in a relocation case, the fundamental right to travel interstate can be restricted only in furtherance of a compelling state interest. In re Marriage of Cole, 224 Mont. 207, 729 P.2d 1276 (1986) (citing Shapiro v. Thompson, supra).

Some courts have sidestepped the constitutional issue by pointing out that a denial of relocation does not affect the parent's right to travel alone. As the Indiana Court of Appeals explained, "The straightforward answer to [the wife's constitutional] argument is that the court's order does not impose any necessary burden whatever upon her right to travel. She remains free to go wherever she may choose. It is the children who must be returned to Indiana." Clark v. Atkins, 489 N.E.2d 90, 100 (Ind. Ct. App. 1986) (court's emphasis).

Other courts have decided the constitutional issue head on. These courts note that if a parent who seeks to travel must pay for that right by giving up custody of the children which is itself a constitutionally protected right, see Santosky v. Kramer, 455 U.S. 745 (1982) the right to travel has indeed been infringed. The inquiry then becomes whether that infringement is justified by a compelling state interest.

Most courts deciding this issue have held, as did the Montana Supreme Court in In re Marriage of Cole, supra, that "furtherance of the best interests of a child, by assuring the maximum opportunities for the love, guidance and support of both natural parents, may constitute a compelling state interest worthy of reasonable interference with the right to travel interstate." 729 P.2d at 1280-81. Therefore, in relocation cases, courts must engage in a "delicate balancing," on the one side the child's best interests, and on the other side the custodial parent's fundamental right to travel, which is "qualified by the special obligations of custody . . . and the competing interests of the noncustodial parent." Id.

In most cases, therefore, the courts have balanced the custodial parent's right to travel against the compelling state interest in protecting the child's best interests. See, e.g., In re Marriage of Cole, supra; Zwerneman v. Kenny, 236 N.J. Super. 1, 563 A.2d 1139 (App. Div. 1989); In re Marriage of Sheley, 78 Wash. App. 2d 494, 895 P.2d 850 (1995), review denied, 128 Wash. 2d 1007, 910 P.2d 481 (1996). In some cases, however, the courts have used the child's best interests to "trump" the parent's constitutional right. See, e.g., Ziegler v. Ziegler, 107 Idaho 527, 691 P.2d 773 (Ct. App. 1985) (child's best interests take priority over parent's right to travel); Everett v. Everett, 660 So. 2d 599 (Ala. Civ. App. 1995) (following Ziegler). This approach reflects a poor understanding of and an insufficient regard for the fact that the parent's right is a fundamental constitutional one.

II. RELOCATION OF THE PARENT WITH SOLE CUSTODY OR PRIMARY PHYSICAL CUSTODY

The vast majority of relocation cases involve a move or proposed move by a sole custodian or by a joint custodian with primary physical custody. Typically, the other parent opposes the move and also may seek a transfer of custody. Because petitions seeking or opposing relocation are decided under a different standard than are motions for custody modification, they will be examined separately, although both may be present in any given case.

Relocation Petitions parent opposing the move. Courts across the nation have taken a variety of

relocation petitions. Perhaps the most liberal is the approach recently where her new husband's family was located. Both she and her new husband parent and those of the child, the Tennessee Supreme Court held that a rights of the noncustodial parent." Id. at 629. If the noncustodial parent serious threat of harm to the child, he or she can seek a custody A number of states apply a presumption in favor of relocation by a custodial parent with good-faith motives. These states include Florida, Colorado, Nevada, and Minnesota.

In 1993, the Florida Supreme Court expressed a general policy favoring relocation by the custodial parent. In Mize v. Mize, 621 So. 2d 417 (Fla. 1993), the mother, who had primary physical custody, sought permission to move to California with the parties' daughter. The father opposed the motion. Acknowledging that relocation cases do not lend themselves to bright-line rules, the supreme court adopted a general policy favoring relocation so long as the custodian has a well-intentioned reason and is not motivated by a vindictive desire to interfere with the other parent's custodial rights. The court then set forth six factors for consideration in each case:

Id. at 420 (adopting the holding in Hill v. Hill, 548 So. 2d 705, 706 (Fla. DCA 1989), review denied, 560 So. 2d 233 (Fla. 1990)).

Mize was recently clarified by the Florida Supreme Court in Russenberger v. Russenberger, 669 So. 2d 1055 (Fla. 1996), another case in which a mother with primary physical custody sought to move out of state. The court held that upon a demonstration of good faith by the parent seeking to relocate, a presumption arises that relocation should be permitted. The presumption is rebuttable, however, and in considering whether the presumption is rebutted, the court must weigh the factors set forth in Mize.

The Colorado Supreme Court also recently created a presumption favoring relocation by a custodial parent. In In re Marriage of Francis, 1996 WL 288755 (Colo. June 3, 1996) (en banc), a mother with sole custody sought to relocate to New York to attend a two-year physician's assistant's program. The father opposed the petition. The supreme court held that a parent with sole custody or primary physical custody who desires to relocate to another state must make a prima facie showing of "a sensible reason for the move." 1996 WL 288755 at *8. Upon such a showing, a presumption arises that the child should relocate with the custodial parent, and the burden shifts to the other parent to demonstrate that the move is not in the child's best interests. The presumption can be overcome with evidence that "the negative impact of the move cumulatively outweighs the advantages of remaining with the primary care-giver." Id. at *9. Factors to be considered include:

Id. If the cumulative weight of these factors, together with other factors the trial court may find relevant, outweighs the presumption favoring the custodial parent, then the relocation petition should be denied. Otherwise, the custodial parent should be entitled to the benefit of the presumption.

Nevada applies a similar standard. In Gandee v. Gandee, 111 Nev. 73, 895 P.2d 1285, 1287 (1995), the Nevada Supreme Court held that a custodial parent seeking to relocate must make a threshold showing of a "sensible, good faith reason for the move." A good-faith reason is one that is not designed to frustrate the other parent's visitation rights. In Cook v. Cook, 111 Nev. 85, 898 P.2d 702 (1995), the court further held that once the threshold showing has been made, the burden of proof shifts to the other parent to demonstrate that the move is not in the child's best interests, with reference to specific factors, including whether reasonable alternative visitation is possible. In Trent v. Trent, 111 Nev. 309, 890 P.2d 1309, 1313 (1995), the court emphasized that the state's removal statute, which was primarily a notice statute, should not be used "to chain custodial parents, most often women, to the state of Nevada."

Minnesota not only applies a presumption favoring removal, but also requires the parent opposing the move to make a prima facie showing of harm to the child in order to obtain an evidentiary hearing. In Silbaugh v. Silbaugh, 543 N.W.2d 639 (Minn. 1996) (en banc), the mother, who had primary physical custody, sought to relocate to Arizona to pursue a career opportunity. The father opposed the move and requested an evidentiary hearing. He presented his own affidavit, as well as several affidavits from family and friends, voicing concerns for the children's welfare if they were to move to Arizona. The Minnesota Supreme Court reaffirmed its prior decision in Auge v. Auge, 334 N.W.2d 393 (Minn. 1983), which held that the state's custody modification statute created an implicit presumption that relocation should be permitted. To rebut the presumption, the opposing parent must demonstrate that the move is not in the child's best interests and would endanger the child's health and well-being, or that the move was intended to interfere with visitation. Unless the opposing parent can make a prima facie showing against the move, permission to relocate should be granted without a full evidentiary hearing. The court in Silbaugh then held that evidence of disruption in a child's life typically associated with an interstate move is insufficient to make a prima facie showing against the move. Thus, the father's affidavits in this case failed to trigger an evidentiary hearing.

Moderate Approach. Many states require the relocating parent to prove that the move is in the child's best interests without the benefit of any presumption. Often, the child's best interests must be determined with reference to specific factors. States following the child's-best-interests approach include Arizona, Illinois, Nebraska, New Mexico, New York, and Missouri.

In Pollock v. Pollock, 181 Ariz. 275, 889 P.2d 633 (Ct. App. 1995), a mother with sole custody sought to relocate to New Hampshire with her new husband, who had family in that state. She filed a motion to modify visitation, and the father sought an injunction prohibiting the move. The Arizona Court of Appeals held that the relocating parent bears the burden of proving that the move is in the child's best interests, with reference to specific factors. These factors include: (1) whether the relocation request is made in good faith; (2) whether the move will improve the general quality of life for the custodial parent and the child; (3) whether the custodial parent is likely to comply with visitation orders; (4) whether the move will permit a realistic opportunity for visitation; (5) the extent to which moving or not moving will affect the child's physical, emotional, and developmental needs; and (5) the integrity of the opposing parent's motives. The court emphasized that all the factors should be weighed collectively, with no single factor controlling.

Illinois also follows this approach. In In re Marriage of Eaton, 269 Ill. App. 3d 507, 646 N.E.2d 635 (1995), a mother with sole custody sought to relocate to Florida to marry an attorney with an established practice in that state. The father opposed the move. The Illinois Appellate Court first noted that under In re Marriage of Eckert, 119 Ill. 2d 316, 518 N.E.2d 1041 (1988), a custodial parent seeking to relocate bears the burden of proving that the move is in the child's best interests. Factors for consideration include: (1) whether the proposed move will enhance the quality of life for both the custodial parent and the child; (2) whether the proposed move is a ruse designed to frustrate the other parent's visitation rights; (3) the motives of the other parent in resisting the move; (4) the visitation rights of the other parent; and (5) whether a reasonable visitation schedule can be achieved if the move is allowed. A "reasonable visitation schedule" is one that preserves and fosters the child's relationship with the noncustodial parent. The court in Eaton then held that the factors should be weighed and balanced, rather than being treated as separate prongs of a test.

Nebraska requires the relocating parent to show a legitimate reason for the move before proving that the move is in the child's best interests. In Harder v. Harder, 246 Neb. 945, 524 N.W.2d 325 (1994), a mother with sole custody sought permission to relocate to Arizona so that her new husband could pursue a business opportunity there. The father opposed the move. The Nebraska Supreme Court noted its prior holding in Demerath v. Demerath, 233 Neb. 222, 444 N.W.2d 325 (1989), that relocation is generally permitted when the custodial parent shows a legitimate reason for leaving the state and that it is in the child's best interests to continue to live with that parent. The court in Harder then held that remarriage, obtaining employment, and improving a career are legitimate reasons for leaving the state. See also Jaramillo v. Jaramillo, 113 N.M. 57, 823 P.2d 299 (1991) (primary physical custodian must prove that relocation is in child's best interests).

Some courts do not expressly state which parent bears the burden of proof in the child's-best-interests determination. The New York Court of Appeals' recent decision in Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d 575 (1996), implicitly holds that the relocating parent bears the burden. In consolidated appeals involving a sole custodian relocating within the state and a primary physical custodian moving out of state, the court abrogated the state's stringent "exceptional circumstances" standard for relocation, see discussion infra, and replaced it with the child's-best-interests test. Factors to be included in the determination of the child's best interests include: (1) each parent's reasons for seeking or opposing the move; (2) the quality of the relationships between the child and the custodial and noncustodial parents; (3) the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent; (4) the degree to which the custodial parent's and the child's life may be enhanced economically, emotionally, and educationally by the move; and (5) the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements. That the relocating parent bears the burden of proof is suggested by the court's concluding statement: "In the end, it is for the court to determine, based on all the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child's best interests." 642 N.Y.S.2d at 581-82 (footnote omitted); see also McElroy v. McElroy, 910 S.W.2d 798 (Mo. Ct. App. 1995) (listing four specific factors relevant to child's-best-interests inquiry in relocation cases; implicitly holding that relocating parent bears burden of proof).

The California Supreme Court's recent decision in In re Marriage of Burgess, 13 Cal. 4th 25, 51 Cal. Rptr. 2d 444 (1996), also does not state explicitly which parent bears the burden of proof on the child's-best-interests issue. Upon divorce, a mother obtained sole physical custody and permission to move to another town 40 miles away. The intermediate appellate court reversed, holding that the mother had failed to show the necessity of the proposed move. On appeal by the mother, the California Supreme Court held that a relocating parent is not required to prove that the move is necessary. The relevant statutes require the court to consider the effects of the proposed move on the best interests of the children, including their health, safety, and welfare, and the nature and amount of contact with both parents. No statutory basis exists, however, for "imposing a specific additional burden of persuasion on either parent to justify a choice of residence as a condition of custody." 51 Cal. Rptr. 2d at 450 (emphasis in original). Thus, although the allocation of the burden of proof is unclear, the decision does clarify that a relocation petition is governed by the child's-best-interests standard without any additional inquiry into the necessity of the move. See also Marriage of Duckett & Duckett, 137 Or. App. 446, 905 P.2d 1170 (1995) (relocation petition governed by child's-best-interests standard; unclear who bears burden of proof).

Restrictive Approach. Until March of this year, New York took the most restrictive approach of any state in the nation to relocation petitions. Generally, the courts did not permit any relocation that would interfere with the other parent's visitation schedule absent "exceptional or compelling circumstances." Daghir v. Daghir, 56 N.Y.2d 938, 453 N.Y.S.2d 609 (1982). The standard was applied by the lower courts to deny relocation unless the custodial parent could show that the move was a matter of economic necessity rather than mere economic betterment or advantage. E.g., Sanders v. Sanders, 185 A.D.2d 716, 585 N.Y.S.2d 891 (1992). Personal reasons for the move, such as remarriage or a desire to make a fresh start in life, were wholly inadequate. E.g., Atkinson v. Atkinson, 197 A.D.2d 771, 602 N.Y.S.2d 953 (1993). Not surprisingly, most custodial parents were unable to prove the existence of exceptional circumstances. If the parent did manage to prove such circumstances, then the court would engage in a child's-best-interests inquiry and usually grant permission to relocate. See, e.g., Church v. Church-Corbett, 214 A.D.2d 877, 625 N.Y.S.2d 367 (1995) (exceptional circumstances were present and relocation was otherwise in the child's best interests).

Earlier this year, however, the New York Court of Appeals abrogated the exceptional circumstances test in Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d 575 (1996). As discussed more fully above, the court held that relocation petitions are to be decided in the child's best interests, with careful balancing of several specific factors. The court believed that the exceptional circumstances test was unsatisfactory because it erected artificial barriers to the court's consideration of all the relevant factors. In a case in which no exceptional circumstances were proved, the test required denial of relocation without any consideration of whether the move would serve the child's best interests or whether the benefits to the child would outweigh the diminution in access by the noncustodial parent. The distorting effects of the test were amplified when the lower courts required a showing of economic necessity or health-related compulsion to establish exceptional circumstances. The court of appeals believed that relocation cases were too complex to be satisfactorily handled by any test that prevented a simultaneous weighing and comparative analysis of all the relevant facts and circumstances.

For pending cases governed by the former law, we note special types of cases in which a showing of exceptional circumstances is not required. First, the exceptional circumstances test is inapplicable when a prior agreement of the parties, and/or the divorce decree itself, expressly contemplates an out-of-state move. In such cases, relocation is permitted if it is in the child's best interests. See Wright v. Wright, 211 A.D.2d 341, 627 N.Y.S.2d 819 (1995) (because parties' incorporated agreement expressly permitted out-of-state relocation with 60 days' notice to other parent, exceptional circumstances test was inapplicable and child's-best-interests test applied; relocation of primary physical custodian to Mississippi was permitted); Smith v. Finger, 187 A.D.2d 711, 590 N.Y.S.2d 301 (1992) (because parties' incorporated agreement expressly contemplated out-of-state move, exceptional circumstances need not be shown; relocation of joint physical custodian to Virginia was allowed), appeal denied, 82 N.Y.2d 704, 601 N.Y.S.2d 578 (1993). In addition, when the proposed relocation does not affect the existing visitation schedule, or does not involve a significant geographical distance, exceptional circumstances need not be demonstrated. See Carroll v. Carroll, 215 A.D.2d 623, 628 N.Y.S.2d 316 (1995) (because noncustodial parent's visitation rights of 21 days a year were not affected by sole custodian's move to Florida, exceptional circumstances test was inapplicable; relocation was permitted); Henehan v. Henehan, 213 A.D.2d 761, 622 N.Y.S.2d 1013 (1995) (when primary physical custodian wished to move to nearby town, exceptional circumstances were not required). Finally, when the noncustodial parent has failed to exercise visitation rights, exceptional circumstances need not be proved. Cf. Wittig v. Wittig, 215 A.D.2d 927, 626 N.Y.S.2d 863 (1995) (if noncustodial parent had consistently failed to exercise visitation rights, primary physical custodian would not have been required to show exceptional circumstances).

Custody Modification Motions

As noted above, in many cases involving a relocation or proposed relocation by the custodial parent, the noncustodian may seek a transfer of custody of the children. This relief may be sought in addition to, or instead of, an order requiring the custodial parent to remain in the state.

Changed-Circumstances Standard. Most states apply the traditional "changed-circumstances" test for custody modification to decide custody modification motions based on the other parent's relocation. In its usual formulation, this test permits custody modification upon a showing by the requesting party that (1) circumstances affecting the child have changed substantially since the prior order, and (2) the proposed modification is in the child's best interests. See generally 2 H. Clark, The Law of Domestic Relations in the United States 20.9 (2d ed. 1987); 2 J. Atkinson, Modern Child Custody Practice 9.05 (1986 & Supp. 1995).

Some courts have decided relocation/custody modification cases based only upon the first part of this inquiry, finding that the custodian's move did not constitute a sufficient changed circumstance for modification. In Ormandy v. Odom, 217 Ga. App. 780, 459 S.E.2d 439 (1995), the father, who had sole custody, was transferred by his employer to Illinois. When the mother learned of the impending move, she sought a custody transfer. The Georgia Court of Appeals held that relocation of a custodial parent, in and of itself, is not a changed circumstance for custody modification purposes. Absent a showing that the relocation would be detrimental to the children beyond the unavoidable "uprooting" effect of any move to a new state, the relocation cannot constitute a changed circumstance. In this case, the mother had failed to present evidence of any harm to the children other than the usual disruptive effect of a move to a new locale. Thus, an inquiry into the children's best interests was not warranted. See also Swonder v. Swonder, 642 N.E.2d 1376 (Ind. Ct. App. 1994) (out-of-state move is not of itself a sufficient changed circumstance); In re Marriage of Montgomery, 521 N.W.2d 471 (Iowa Ct. App. 1994) (same); DeBeaumont v. Goodrich, 162 Vt. 91, 644 A.2d 843 (1994) (same).

Other courts have decided such cases with reference to the second prong of the test. In Wages v. Wages, 660 So. 2d 797 (Fla. DCA 1995), a mother with primary physical custody moved to Kentucky with her new husband a few months after the divorce. When she petitioned for modification of the visitation schedule, the father sought a custody transfer. The Florida District Court of Appeal held that although the move to Kentucky may have constituted a changed circumstance, the father had not shown that the child's best interests would be served by a custody change. Similarly, in Warchol v. Warchol, 853 S.W.2d 165 (Tex. Ct. App. 1993), the father sought primary physical custody after the mother moved to Illinois, where her brother lived. The Texas Court of Appeals held that although the mother's move may have constituted a changed circumstance, the father had not shown that a custody transfer was in the child's best interests. On the contrary, the trial court had expressly found that the child's best interests would be served by remaining in the mother's custody, and no abuse of discretion was apparent in this finding. See also Smith v. Smith, 615 So. 2d 926 (La. Ct. App.) (primary physical custodian's out-of-state move, although it may have been a changed circumstance, did not warrant custody transfer), review denied, 617 So. 2d 916 (La. 1993); Gould v. Miller, 488 N.W.2d 42 (N.D. 1992) (same).

A number of states provide, either by statute or case law, that a custodian's out-of-state move is, as a matter of law, a changed circumstance requiring reevaluation of the child's best interests. For example, Mo. Ann. Stat. 452.411 (Vernon Cum. Supp. 1996) provides:

The Missouri Court of Appeals applied this statutory provision in In re Marriage of Lowe, 860 S.W.2d 813 (Mo. Ct. App. 1993). The mother, as primary physical custodian, moved with the child to Minnesota, where her new husband had accepted employment, and then sought approval from the Missouri court. The father sought a custody transfer. The court of appeals first noted that 452.411 rendered the mother's move a changed circumstance as a matter of law. Thus, the trial court was permitted to modify custody if it determined modification to be in the child's best interests. The court then held that ample evidence supported the trial court's finding that a transfer of primary custody to the father would serve the child's best interests. The trial court had based its finding on the "uprooting" effect of the move on the child and a general deterioration in the mother-child relationship. The trial court had also found that the move was made, at least in part, to frustrate the father's relationship with the child. See also Rowland v. Kingman, 629 A.2d 613 (Me. 1993) (applying statutory provision that parent's relocation out of state is changed circumstance as matter of law; court affirmed order transferring primary physical custody to father if mother moved to Oregon), cert. denied, 114 S. Ct. 884 (1994).

The same approach has been judicially adopted in other states. In In re Marriage of Bradley, 258 Kan. 39, 899 P.2d 471 (1995), the father obtained a transfer of primary physical custody based upon the mother's relocation to Washington, D.C. The Kansas Supreme Court held that a custodial parent's relocation, significant enough to render the original custody arrangement unworkable, constitutes a changed circumstance warranting a reexamination of the child's best interests. Such a move does not require a custody transfer in every case; it only demonstrates a need to reevaluate the existing arrangement. The court then held that although the issue was close, evidence supported the trial court's finding that the child's best interests would be served by remaining in Kansas with the father. The court noted the presence of extended family in the state. See alsoCanty v. Canty, 178 Ariz. 443, 874 P.2d 1000 (Ct. App. 1994) (out-of-state move is changed circumstance triggering child's-best-interests inquiry); Osteraas v. Osteraas, 124 Idaho 350, 859 P.2d 948 (1993) (same); Goldmeier v. Lepselter, 89 Md. App. 301, 598 A.2d 482 (1991) (same), cert. denied, 325 Md. 248-50, 600 A.2d 419 (1992).

Endangerment Standard. States that have enacted the Uniform Marriage and Divorce Act apply what has become known as the "endangerment standard" in custody modification cases involving a relocating parent. This standard adds a third proof requirement to the traditional test for modification of custody. For example, Colo. Rev. Stat. 14-10-131 (1987) provides that a custody decree shall not be modified unless the court finds that a change of circumstances is present, modification is necessary to serve the best interests of the child, and "[t]he child's present environment endangers his physical health or significantly impairs his emotional development[.]" The Colorado Supreme Court recently held in In re Marriage of Francis, 1996 WL 288755 (Colo. June 3, 1996), that this standard applies whenever a modification of physical custody is at issue. Thus, the standard was applicable to a noncustodial father's motion to transfer sole custody to himself, or to modify sole custody to joint custody with primary physical custody in himself, based on the custodial mother's proposed relocation to New York. Because the supreme court could not determine whether the trial court had applied this standard, its order transferring custody if the mother left the state was reversed and the case was remanded for reconsideration. See also In re Marriage of McDole, 122 Wash. 2d 604, 859 P.2d 1239 (1993) (endangerment standard applies to requests to modify physical custody based on physical custodian's out-of-state relocation).

III. RELOCATION IN SHARED PHYSICAL CUSTODY CASES

As noted above, the majority of relocation cases in the joint custody context involve a move by a parent having primary physical custody. The issue of relocation by a parent in a shared or alternating physical custody arrangement, in which the child spends approximately equal time with each parent, has been litigated much less frequently. The cases that have been decided, however, reflect a strong disinclination by the courts to permit a significant move by a parent who shares physical custody.

In In re Marriage of Johnson, ___ Ill. App. 3d ___, 660 N.E.2d 1370 (1996), the parties lived in close proximity and shared physical custody of the child almost equally, even though the mother had been awarded primary physical custody upon divorce. This arrangement continued for nearly four years until the mother's new husband was transferred to Texas by his employer. The mother sought permission to relocate, and the father opposed the petition. Examining the factors set forth in In re Marriage of Eckert, 119 Ill. 2d 316, 518 N.E.2d 1041 (1988), the trial court determined that relocation was in the child's best interests, granted the mother's petition, and modified the visitation schedule. The Illinois Appellate Court reversed, however, holding that the indirect benefit to the child of the mother's continuing to live with her new husband did not outweigh the direct benefit of a continued close relationship with the father. The court noted the trial court's finding of the father's "`extraordinary involvement'" in the child's life, and found the 50% reduction in the father's time with the child to be unreasonable. In re Marriage of Johnson, supra, 660 N.E.2d at 1373. The court also noted the presence of extended family in Illinois.

Parents in a shared custody arrangement have also lost custody when they attempted to relocate. In In re Marriage of Hoover, 40 Cal. App. 4th 433, 46 Cal. Rptr. 2d 737 (1995), the mother had physical custody approximately 60% of the time; the father had custody about 40% of the time. When the mother made plans to move with her new husband to Pennsylvania, where they had accepted employment, the father opposed the move and sought primary physical custody. After finding that the move was economically necessary, that both parties were excellent parents, and that the mother's new husband was an excellent stepfather, the trial court modified custody to give the father primary physical custody with visitation rights to the mother of at least 100 days a year. In affirming, the California Court of Appeal distinguished prior cases involving relocation by a sole or primary physical custodian. The court noted that "here we have shared physical custody and established patterns of care and emotional bonds with both parents." 46 Cal. Rptr. 2d at 741.

Similarly, in DeBeaumont v. Goodrich, 162 Vt. 91, 644 A.2d 843 (1994), the parties shared physical custody on an approximate 50/50 basis, even though the mother had been awarded sole custody upon divorce by agreement. The divorce decree also contained an agreed provision that a move by either party of more than 50 miles would constitute a change in circumstances warranting a reexamination of the custody issue. Six months after the divorce, the mother made an unannounced move with the children to Pennsylvania, where her boyfriend had accepted employment. The father sought a custody modification, and the trial court granted him sole custody with visitation rights to the mother. In affirming, the Vermont Supreme Court held first that even absent the provision in the agreement, the mother's relocation to Pennsylvania constituted a changed circumstance. The abrupt move had unilaterally terminated the parties' coparenting arrangement. The court then determined that the award of sole custody to the father was in the children's best interests. Although prior cases held that relocation with a sole custodian is generally in a child's best interests, this case involved a shared physical custody arrangement in which the father had almost daily contact with the children. This factor was entitled to great weight in the trial court's child's-best-interests determination. See alsoWarlick v. Warlick, 661 So. 2d 706 (La. Ct. App. 1995) (in case involving shared physical custody, father obtained primary physical custody after mother moved 250 miles away to Texas).

A New Jersey court took a creative approach to balancing the competing interests at stake in such cases in Rampolla v. Rampolla, 269 N.J. Super. 300, 635 A.2d 539 (App. Div. 1993). The parties shared physical custody, with the father living in the former marital residence in Mercer County, New Jersey, and the mother living close by. The father commuted daily to his job in Manhattan in New York City. The mother married a man who resided in Staten Island in New York City and who worked at Kennedy Airport. Both the mother and her new husband had large extended families in Staten Island. The mother sought permission to move with the children to Staten Island, and the father sought primary physical custody based on the impending move. The trial court denied both petitions. Reversing the denial of the mother's petition, the Appellate Division of the New Jersey Superior Court held that the trial court should have considered whether the father could also relocate to New York City. Consideration of this possibility would offer a welcome alternative to the "all or nothing outcome" that too often is the result in relocation cases. 635 A.2d at 543. Instead of the move being pitted against the status quo, the possibility of replicating the status quo in a new location becomes a viable alternative with benefits to all parties. The court remanded the case for consideration of this possibility.

IV. IN-STATE MOVES

A number of recent cases involve a move or proposed move to another location in the same state. Regardless of the particular test employed, such moves are usually permitted.

The Indiana Court of Appeals reversed a transfer of primary physical custody to the father based on the mother's in-state move in In re Marriage of Van Schoyck, 661 N.E.2d 1 (Ind. Ct. App. 1996). Four years after the divorce, the mother had moved to another city to live with her boyfriend and his parents. The court of appeals held that the father had failed to demonstrate a change in circumstances warranting a custody modification. The father's desire for the child to remain in the same school district was an insufficient basis for a custody transfer.

Similarly, in Basler v. Basler, 892 S.W.2d 749 (Mo. Ct. App. 1995), the Missouri Court of Appeals reversed a transfer of primary physical custody to the father based on the mother's in-state move. The move occurred six years after the divorce, when the mother remarried and moved to another county. Although the divorce decree provided that a move by either party outside a three-county area could justify a change of custody, the court did not believe that a move from southeast to central Missouri was significant enough to warrant a custody transfer. See also In re Marriage of Wycoff, 266 Ill. App. 3d 408, 639 N.E.2d 897 (1994) (reversing custody transfer based on primary physical custodian's in-state move); Peyton v. Peyton, 614 So. 2d 185 (La. Ct. App. 1993) (same); Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d 575 (1996) (reversing trial court's denial of sole custodian's request to move in state); Bingham v. Bingham, 811 S.W.2d 678 (Tex. Ct. App. 1991) (affirming grant of primary physical custodian's petition to relocate to another county).

When the divorce decree prohibits a move outside a certain area, however, some courts will enforce the restriction even if the move is to another area in the same state. In Cohn v. Cohn, 658 So. 2d 479 (Ala. Civ. App. 1994), the parties' incorporated separation agreement gave primary physical custody to the mother but restricted her residence to the county. When she planned to move to a distant city in the same state, the father sought a custody modification. The trial court denied modification but enjoined the mother from changing the children's residence outside the county. In affirming, the Alabama Court of Civil Appeals held that enforcement of the parties' agreement was proper. Additionally, the evidence supported the trial court's finding that removal from the county would not be in the children's best interests. They had lived their entire lives in the county and had a large extended family there. See also Wood v. O'Donnell, 894 S.W.2d 555 (Tex. Ct. App. 1995) (reversing grant of permission to primary physical custodian to move to another county when parties' incorporated agreement restricted custodian's residence to same county).

V. RELOCATION PROVISIONS IN ORIGINAL DECREE

Not infrequently, the initial custody order contains an express prohibition against removing the child from the state. Does such a provision offer a noncustodian or a joint custodian any greater protection against the other parent's moving away with the child?

No clear-cut answer emerges from the reported decisions. In some cases involving express prohibitions, the parent seeking to relocate must meet a higher standard to obtain court approval. As noted above, the Florida Supreme Court adopted a general policy favoring relocation in Mize v. Mize, 621 So. 2d 417 (Fla. 1993). The court also held, however, that when the initial order contains an express prohibition against relocation of the child, the parent seeking to relocate must meet the more stringent changed-circumstances test. This requirement was applied in Card v. Card, 659 So. 2d 1228 (Fla. DCA 1995), a case in which the divorce decree prohibited both the mother, who had primary physical custody, and the father from removing the child from Florida. When the mother's new husband was transferred to Colorado by his employer, the mother sought permission to relocate with the child. The Florida District Court of Appeal held first that the mother had demonstrated changed circumstances by showing that her new husband would be terminated if he refused the transfer and that he had been unable to find comparable employment in Florida. The court then noted that the family's standard of living would improve if the move were permitted, that the mother had extended family in Colorado, and that the substitute visitation proposed by the mother was adequate to maintain a meaningful father-child relationship. Noting that the father's active involvement in the child's life made the decision difficult, the court nevertheless determined that relocation was in the child's best interests.

Other courts have denied permission to relocate and/or transferred custody to the other parent when a custodian relocated in contravention of a residential restriction. In Cohn v. Cohn, 658 So. 2d 479 (Ala. Civ. App. 1994), the parties agreed upon divorce that the wife would have primary physical custody and the children would not be removed from the county. When the mother planned to move to a distant city in the same state for employment reasons, the father sought a custody transfer. The trial court denied the father's motion but enjoined the mother from relocating outside the county. In affirming, the Alabama Court of Civil Appeals held that the trial court had properly enforced the parties' agreement. In addition, the children's best interests required that they remain in the county. In a Louisiana case, Warlick v. Warlick, 661 So. 2d 706 (La. Ct. App. 1995), the parties agreed on divorce to share physical custody and not to move the child outside a 35-mile radius. When the mother accepted employment in Texas some 250 miles away, she petitioned for a modification of visitation; the father sought a custody modification. The trial court modified the physical custody arrangement to grant the father primary physical custody. The Louisiana Court of Appeals affirmed, holding that the mother's impending move was a changed circumstance because it rendered the original physical custody arrangement unworkable. Further, the relevant factors, including the parties' agreed residential restriction, supported the trial court's finding that the custody modification was in the child's best interests. See also Wood v. O'Donnell, 894 S.W.2d 555 (Tex. Ct. App. 1995) (permission to relocate to another county was denied, in part because divorce decree restricted child's residence to county).

In other cases, courts freely ignore antiremoval language in prior agreements or orders. In In re Marriage of Witzenburg, 489 N.W.2d 34 (Iowa Ct. App. 1992), the divorce decree incorporated the parties' agreement giving the mother primary physical custody and providing that if either party moved more than 60 miles from his or her present location, the move would constitute a substantial change of circumstances for custody modification purposes. Eleven days after the divorce decree was entered, the mother moved with the child to Florida to be with her boyfriend. The father sought a transfer of primary physical custody, but the trial court denied his petition, ruling that the mother's move was not a sufficient changed circumstance. The court did not believe itself bound by the provision of the incorporated agreement. The Iowa Court of Appeals affirmed. See also In re Marriage of Hunt, 476 N.W.2d 99 (Iowa Ct. App. 1991) (father's petition for transfer of primary physical custody based on mother's move 130 miles away was denied; court was not bound by antiremoval provision in incorporated agreement); Hill v. Robbins, 859 S.W.2d 355 (Tenn. Ct. App. 1993) (primary physical custodian's out-of-state move was permitted even though contrary to parties' incorporated agreement).

Occasionally, an incorporated agreement may anticipate relocation by one or both parties. In such cases, even the courts of New York have permitted the contemplated relocation. In Smith v. Finger, 187 A.D.2d 711, 590 N.Y.S.2d 301 (1992), appeal denied, 82 N.Y.2d 704, 601 N.Y.S.2d 578 (1993), the parties' incorporated agreement provided that either parent had the "absolute right" to relocate out of the state to another area, including, but not limited to, Boston, Massachusetts, or Washington, D.C., so long as the parent's new residence was within one-hour direct flight time to or from New York. A year after the divorce, the mother married a dentist with an established practice in Woodbridge, Virginia, a suburb of Washington, D.C. She sought permission to relocate with the child to Virginia; the father opposed the petition and sought physical custody. The trial court granted the mother's petition. In affirming, the New York Supreme Court, Appellate Division, first noted that the parties' incorporated agreement expressly authorized a move to the Washington, D.C., area. In addition, the mother's relocation would not deprive the father of regular and meaningful contact with the child because both parents had the financial resources to pay the child's travel expenses. See also Wright v. Wright, 211 A.D.2d 341, 627 N.Y.S.2d 819 (1995) (primary physical custodian's move to Mississippi was permitted; parties' incorporated agreement contemplated out-of-state moves and proposed relocation was otherwise in child's best interests).

VI. INITIAL CUSTODY AWARDS

Although the vast majority of relocation cases involve a move or proposed move occurring after a permanent custody order has been entered, relocation issues sometimes arise in the initial custody determination usually in the context of a divorce. Many states treat a proposed move by a parent seeking custody as another factor to be weighed in the overall child's-best-interests determination.

For example, in In re Marriage of Burgess, 13 Cal. 4th 25, 51 Cal. Rptr. 2d 444 (1996), a divorcing mother who sought physical custody of the children expressed an intention to relocate to another town about 40 miles away. She had accepted a job transfer that she believed would be career-advancing. In addition, the children would have easier access to medical care, day-care facilities, and extracurricular activities in the new town. The trial court awarded the mother sole physical custody and permitted her to relocate. The court of appeal reversed, however, because the mother had not demonstrated that the move was "necessary." As discussed more fully above, the California Supreme Court reversed the court of appeal, explaining that California law contains no requirement that a proposed relocation be "necessary." In an initial custody determination, the law requires consideration of all the circumstances affecting the child's best interests, including a proposed relocation. But the law places no additional burden on either parent to justify a choice of residence as a condition of custody. In this case, no abuse of discretion was apparent in the trial court's determination that the children's best interests were served by granting the mother physical custody and permission to relocate.

Similarly, in McQuade v. McQuade, 901 P.2d 421 (Alaska 1995), a divorce proceeding, the trial court considered the mother's proposed relocation to Texas as a factor in its best-interests determination on custody. Both parties sought sole custody of the child, and the mother expressed a desire to return to her home state of Texas, where her family was located. The trial court awarded the mother primary physical custody and allowed her to return to Texas. In affirming, the Alaska Supreme Court held that the trial court had weighed the child's-best-interests factors with no abuse of discretion. The court rejected the father's argument that a stricter standard should have been applied because of the impending relocation. See also Everett v. Everett, 660 So. 2d 599 (Ala. Civ. App. 1995) (upon divorce, child's best interests required that mother receive primary physical custody but that her residence be restricted to county); Boudreaux v. Boudreaux, 657 So. 2d 459 (La. Ct. App. 1995) (upon divorce, children's best interests required mother to receive primary physical custody even though she would relocate to California); In re Marriage of Sheley, 78 Wash. App. 2d 494, 895 P.2d 850 (1995) (upon divorce, children's best interests required that mother receive primary physical custody but that her residence be restricted to Seattle area), review denied, 128 Wash. 2d 1007, 910 P.2d 481 (1996).

Other states apply the same test that would govern a postdivorce relocation petition in the particular jurisdiction. For example, in Cerminara v. Cerminara, 286 N.J. Super. 448, 669 A.2d 837 (App. Div. 1996), a divorce proceeding, the mother sought custody and permission to relocate to Virginia, where her father had offered her a job in the family business. The trial court awarded the mother primary physical custody and allowed the move. In affirming, the Appellate Division of the New Jersey Superior Court held that the standard of Holder v. Polanski, 11 N.J. 344, 544 A.2d 852 (1988), a postdivorce relocation case, applied to this case. Under Holder, the parent wishing to relocate must make a threshold showing of a good-faith reason for the move. Then the court must consider additional factors, including the likelihood of an improved quality of life for the relocating parent and the child, as well as the adequacy of a modified visitation schedule. The court in Cerminara then held that the trial court had properly applied the Holder standard to the facts of the case. The mother's request was made in good faith, her reasons, which included improved job opportunities and a return to family, were valid, and adequate alternative visitation could be arranged.

Similarly, in Fuchs v. Fuchs, 887 S.W.2d 414 (Mo. Ct. App. 1994), a divorcing mother sought physical custody and permission to relocate to her home town in Mississippi, which was 385 miles away from the father's residence in Missouri. She had been convicted of embezzlement a few years before the divorce and had found it difficult to secure employment in southeastern Missouri following her release from prison. The trial court granted her primary physical custody but restricted her residence to southeastern Missouri. In reversing, the Missouri Court of Appeals treated the case as though it were a postdivorce relocation petition. The court noted four factors that have been recognized as particularly relevant in deciding relocation cases: (1) the prospective advantages of the move in improving the general quality of life for the custodial parent and the child; (2) the integrity of the custodial parent's motives for relocating; (3) the integrity of the noncustodial parent's motives for opposing relocation; and (4) the realistic opportunity for visitation that would provide an adequate basis for preserving the noncustodial parent's relationship with the child. Applying these factors, the court held that the trial court's restriction of the mother's residence was an abuse of discretion. The evidence showed that living in a different geographical area would minimize the stigma that had rendered the mother unemployable in southeastern Missouri, and the aid and support she would receive from her family in Mississippi would lead to a better quality of life for both her and the child. In addition, there was no evidence that the 385-mile distance would prevent the maintenance of a meaningful relationship between the father and the child. See also Tremblay v. Tremblay, 638 So. 2d 1057 (Fla. DCA 1994) (in divorce case in which mother sought custody and relocation to Massachusetts, appellate court remanded for consideration of Mize factors); Effinger v. Effinger, 913 S.W.2d 909 (Mo. Ct. App. 1996) (upon divorce, weighing of relocation factors required that mother, who received primary physical custody, be required to remain in Missouri).

VII. REASONS FOR RELOCATION

In addition to a state's general approach to the relocation issue, and to the presence or absence of antiremoval language in the initial custody decree, the outcome of a given relocation case also depends upon the reasons for relocation offered by the moving parent. A variety of reasons are reflected in the recent cases.

Legitimate Motive

A threshold issue addressed by all courts, either explicitly or implicitly, is the parent's underlying motive for relocation. If the court believes that the real motive is to interfere with or frustrate the other parent's custodial or visitation rights, permission to relocate will be denied no matter how legitimate the proffered reason may seem. See, e.g., Russenberger v. Russenberger, 669 So. 2d 1044 (Fla. 1996) (evidence of improper motive on part of mother justified denial of her relocation request); Lindell v. Coen, 896 S.W.2d 525 (Mo. Ct. App. 1995) (custody transfer to father was warranted by mother's relocation for purpose of frustrating father's visitation rights); In re Marriage of Lowe, 860 S.W.2d 813 (Mo. Ct. App. 1993) (permission to relocate was denied because motive was to frustrate other parent's visitation rights); In re Marriage of McDole, 122 Wash. 2d 604, 859 P.2d 1239 (1993) (relocation was denied because motive, at least in part, was to interfere with other parent's visitation rights). When the relocating parent's motives appear legitimate, however, the court will proceed to consider other relevant factors. (In Tennessee, of course, there are no other relevant factors; permission to relocate must be granted once the court determines that the relocating parent's motives are proper. See Aaby v. Strange, 924 S.W.2d 623 (Tenn. 1996) (discussed at length above).)

Economic Welfare of the Relocating Parent

The reason most commonly offered in support of a relocation request is the improvement of the parent's economic circumstances. This reason is often regarded as the most compelling one.

Employment Promotion or Transfer. A promotion or transfer by the custodial parent's present employer is usually considered a sufficient reason for relocation, especially if the alternative is loss of the job. In Gandee v. Gandee, 111 Nev. 73, 895 P.2d 1285 (1995), the father, who had physical custody, sought permission to relocate to Oregon to accept a job promotion. The trial court denied his request because it would eliminate the mother's opportunity for midweek and alternating weekend visitation. In reversing, the Nevada Supreme Court held that the father had made a threshold showing of a "sensible, good faith reason" for the move, 895 P.2d at 1287, and that all the other factors supported the move. The father's and the children's standard of living and general quality of life would improve, and the mother would receive large blocks of visitation time that would adequately safeguard her relationship with the children.

Similarly, in Ormandy v. Odom, 217 Ga. App. 780, 459 S.E.2d 439 (1995), the father received sole custody of the parties' children upon divorce. Five years later, upon learning that the father's employer was transferring him to Illinois, the mother sought a custody modification. Concluding that the relocation would cause the children emotional trauma, the trial court granted the mother's petition. In reversing, the Georgia Court of Appeals held that the father's relocation did not constitute a changed circumstance, absent evidence of harm to the children beyond the temporary disruption that attends any move to a new location. The court noted that the father's reason for relocating was valid and that adequate alternative visitation could be arranged. See also In re Marriage of Burgess, 13 Cal. 4th 25, 51 Cal. Rptr. 2d 444 (1996) (divorcing mother awarded sole physical custody and permitted to relocate to take better job with same employer).

A promotion or transfer is not always a sufficient reason for relocation, however, especially when other factors are present. In Van Dyke v. Van Dyke, 538 N.W.2d 197 (N.D. 1995), the wife received sole custody upon divorce. Four years later, she moved with the children to Iowa to accept a job promotion. The father sought a custody modification, and the trial court granted him primary physical custody. The North Dakota Supreme Court affirmed, holding that the mother's relocation without permission constituted a changed circumstance. Further, evidence of the children's close relationship with the father and the presence of extended family in North Dakota supported the trial court's finding that the children's best interests would be served by a custody transfer.

Specific Employment Offer. A specific offer of employment in another state that would improve the custodian's financial circumstances and/or advance his or her career is generally considered a sufficient reason for relocation. In In re Marriage of Montgomery, 521 N.W.2d 471 (Iowa Ct. App. 1994), the father received primary physical custody upon divorce. Seven years later, he notified the mother of his intention to move to Wyoming to take a job with higher pay. The mother sought a custody transfer, but the trial court denied her petition. In affirming, the Iowa Court of Appeals held that the mother had failed to show a change in circumstances adversely affecting the children. The father's reason for relocation was valid, and the children's best interests were served by remaining in his custody. See also Silbaugh v. Silbaugh, 543 N.W.2d 639 (Minn. 1996) (mother with primary physical custody was permitted to move to Arizona to pursue career opportunity); Cook v. Cook, 111 Nev. 85, 898 P.2d 702 (1995) (mother with sole physical custody was permitted to move to Louisiana to take better job).

A custodian's chances of relocation to accept a better job are enhanced if the move will promote some additional benefit to the child, such as contact with relatives. In Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d 575 (1996), the mother received primary physical custody upon divorce. Six months later, she sought permission to move to Massachusetts to accept a job offer and to live near her parents and other extended family. The trial court allowed the move, finding it in the child's best interests, and the New York Court of Appeals affirmed. Similarly, in Cerminara v. Cerminara, 286 N.J. Super. 448, 669 A.2d 837 (App. Div. 1996), a divorcing mother sought custody and permission to move to Virginia, where her father had offered her a job in the family business. The trial court awarded the mother primary physical custody and permitted the move. The Appellate Division of the New Jersey Superior Court affirmed, noting that the mother had a valid reason for the move and that adequate visitation with the father had been arranged.

Permission to relocate to take a better job, however, is not always granted. In In re Marriage of Bradley, 258 Kan. 39, 899 P.2d 471 (1995), the mother received primary physical custody upon divorce. Five years later, she gave notice of her intention to move to Washington, D.C., to accept a new job and to be with her fiance, whom she later married. In affirming a custody transfer to the father, the Kansas Supreme Court held that the impending move was a sufficient changed circumstance because it rendered the existing visitation schedule unworkable. Further, although the case was close, the trial court had not abused its discretion in concluding that the children's best interests would be served by remaining in Kansas, where they had lived all their lives and where extended family was present. See also McElroy v. McElroy, 910 S.W.2d 798 (Mo. Ct. App. 1995) (denying primary physical custodian's request to relocate to Iowa to accept better job and transferring custody to other parent).

In a case involving a shared physical custody arrangement, permission to relocate for employment reasons, or for any reason, is more difficult to obtain. For example, in Warlick v. Warlick, 661 So. 2d 706 (La. Ct. App. 1995), the parties agreed when they divorced to share physical custody, with each party having the child about 50% of the time. A year later, the mother accepted a higher-paying job 250 miles away in Texas and petitioned for modification of visitation. The father opposed the move and obtained primary physical custody. In affirming the custody modification, the Louisiana Court of Appeal held that the mother's relocation was a changed circumstance warranting a custody transfer because it had rendered the shared custody arrangement unworkable.

Better Employment Opportunities. The courts are generally less inclined to permit moves based upon enhanced employment opportunities in the new location rather than upon an actual employment offer. In In re Marriage of Creedon, 245 Ill. App. 3d 531, 615 N.E.2d 19 (1993), a mother with primary physical custody sought to relocate to Texas, a state with a better pay scale for teachers with her level of education. Although she did not have a specific offer of employment, she presented a letter from a school district in Texas stating that she had an excellent chance of employment there. The trial court denied the mother's petition, explaining that the mother's desire for economic betterment, although laudable, was outweighed by the father's interest in maintaining a close relationship with the children. The Illinois Appellate Court affirmed, believing that lengthy summer visitation with the father, coupled with infrequent visitation during the school year, would be an unsatisfactory substitute for the frequent and regular contact he enjoyed with the children under the existing custody arrangement.

Other courts have permitted relocation when the custodian's enhanced employment opportunities in another state were coupled with another benefit to the children, such as the presence of relatives there. In Jaramillo v. Jaramillo, 113 N.M. 57, 823 P.2d 299 (1991), the New Mexico Supreme Court affirmed the trial court's finding that the mother's move to New Hampshire, where her parents lived and where she believed she could find steadier employment, was in the child's best interests. Similarly, in Smith v. Smith, 615 So. 2d 926 (La. Ct. App.), review denied, 617 So. 2d 916 (La. 1993), the Louisiana Court of Appeal reversed a transfer of physical custody to the father based on the mother's move to Indiana. The court noted that the mother was seeking improved employment opportunities for both herself and her new husband, who had enrolled in school in Indiana. In addition, the mother's parents were located in that state.

Second Spouse. Custodians frequently seek permission to relocate because a new spouse has obtained better employment in another state. This reason is generally held sufficient for a move. In Gandee v. Gandee, 111 Nev. 73, 895 P.2d 1285 (1995), a mother with primary physical custody sought to relocate after her new husband was transferred to Colorado by his employer. Acknowledging that the move would result in an improved lifestyle for the children, the trial court nevertheless denied permission to relocate because it would eliminate the father's midweek and alternating weekend visitation. The Nevada Supreme Court reversed, holding that reasonable alternative visitation was possible and that the move was otherwise in the children's best interests. The court noted that the new husband's greater income would permit the mother to devote herself to child care full-time. Similarly, in Card v. Card, 659 So. 2d 1228 (Fla. DCA 1995), a mother with primary physical custody sought permission to relocate when her new husband was transferred to Colorado by his employer. The trial court denied her petition, but the Florida District Court of Appeal reversed. The child's standard of living would improve greatly if the move were allowed, the new husband had been unable to find comparable employment in Florida, and the substitute visitation schedule proposed by the mother was adequate to maintain the father-child relationship. See also Harder v. Harder, 246 Neb. 945, 524 N.W.2d 325 (1994) (sole custodian's relocation to Arizona, where new husband could expand his business, was permitted); Church v. Church-Corbett, 214 A.D.2d 877, 625 N.Y.S.2d 367 (1995) (primary physical custodian's three-year relocation to Italy, where new husband had been stationed, was permitted); Marriage of Duckett & Duckett, 137 Or. App. 446, 905 P.2d 1170 (1995) (primary physical custodian's relocation to Missouri, where new husband had accepted employment, was permitted).

Courts are even more inclined to grant relocation for this reason when the new spouse has been unemployed in the forum state. In In re Marriage of Roe, 18 Cal. App. 4th 1483, 23 Cal. Rptr. 2d 295 (1993), the mother received primary physical custody upon divorce. She remarried, but her new husband was laid off from his employment in the aerospace industry in California. When he eventually obtained new employment in Alabama, the mother obtained permission to relocate. In affirming, the California Court of Appeal held that the interest in custodial continuity outweighed the interest in geographic stability in this case. Although the court did not expressly so state, it appears to have been influenced by the fact that the new husband was totally unemployed in California with no realistic job prospects. See also Pollock v. Pollock, 181 Ariz. 275, 889 P.2d 633 (Ct. App. 1995) (mother with sole custody sought relocation to New Hampshire, where unemployed new husband had family and better employment prospects; case remanded for determination of child's best interests).

Of course, relocation for this reason is not always granted, especially when other factors are present. In McDonough v. Murphy, 539 N.W.2d 313 (N.D. 1995), a mother with sole custody sought to relocate to Arizona, where her new husband had been transferred by his employer. The father opposed the move and sought a custody modification. In affirming a denial of the mother's petition and a transfer of custody to the father, the North Dakota Supreme Court held that the impending move, together with the boy's desire to live with his father and his history of depression, constituted changed circumstances warranting the custody transfer.

Relocation for this reason was denied in a shared physical custody case, In re Marriage of Johnson, ___ Ill. App. 3d ___, 660 N.E.2d 1370 (1996). Four years after the divorce, the mother sought permission to move to Texas, where her new husband had been transferred by his employer. The trial court allowed the move, but the Illinois Appellate Court reversed. Noting that the father had physical custody of the child about 50% of the time under the existing custody arrangement, the court believed that the child's best interests required a denial of the relocation petition. The proposed move would too drastically reduce the father's involvement with the child.

Educational Opportunities. Sometimes a custodian will seek permission to relocate in order to advance his or her education and/or to obtain professional training. Courts generally consider this reason a valid one, especially if the education or training will enhance the custodian's earning capacity and a comparable program is unavailable locally. In Boudreaux v. Boudreaux, 657 So. 2d 459 (La. Ct. App. 1995), a divorcing mother who sought custody revealed her intention to relocate to California to complete her college education and to obtain a teaching certificate. She planned to live with her parents to save money while attending school. The trial court awarded primary physical custody to the father, but the Louisiana Court of Appeal reversed. The court believed that the child's best interests clearly required an award of primary physical custody to the mother. In addition to being a superior candidate for custody generally, the mother had excellent reasons for desiring to relocate. See alsoIn re Marriage of Francis, 1996 WL 288755 (Colo. June 3, 1996) (mother with sole custody sought relocation to New York to attend two-year physician's assistant's program; transfer of custody to father was reversed and case was remanded for application of correct standard); Tremblay v. Tremblay, 638 So. 2d 1057 (Fla. DCA 1994) (divorcing mother sought custody and relocation to Massachusetts to live with family and attend school; trial court's residential restriction was reversed and case was remanded for reconsideration under new standard).

In at least one case, permission to relocate for this reason was denied. In In re Marriage of Elser, 271 Mont. 265, 895 P.2d 619 (1995), a mother with primary physical custody sought to relocate to Kansas to attend a radiology technician's program. She had applied to a similar program offered in the state but had not been accepted. The father opposed the move and sought a custody transfer if the mother relocated. The trial court denied the mother's petition and granted the father's motion. In affirming, the Montana Supreme Court noted that although the mother's reason for relocation was legitimate, adequate alternate visitation could not be worked out in this case because of the father's work schedule. The father performed seasonal highway construction work from April through November, typically working 12-18 hours a day five or six days a week. Thus, scheduling extended blocks of visitation during the summer, when the children were out of school, would be impossible.

Personal Welfare of the Relocating Parent

Although the child's welfare is the main focus in any relocation case, the personal welfare of the petitioning parent is highly relevant because of its obvious relationship to the child's well-being. Frequently, custodial parents desire to relocate for reasons of personal happiness and fulfillment. Although courts generally do not view personal factors to be as compelling as economic reasons, personal factors are nonetheless recognized as relevant.

Remarriage. In an age in which divorce and second marriages have become commonplace, a custodian may remarry a person who lives in another state and then seek to move there with the children. In many cases, permission is given on the rationale that the child will benefit indirectly from the custodian's new-found happiness. Often an improved standard of living will inure to the child as well. In In re Marriage of Eaton, 269 Ill. App. 3d 507, 646 N.E.2d 635 (1995), a mother with sole custody sought to relocate to Florida to marry a lawyer with an established practice there. Acknowledging that the move would result in a greatly improved standard of living for the mother and the children, the trial court nevertheless denied relocation, citing the father's visitation rights and the presence of extended family in Illinois. In reversing, the Illinois Appellate Court held that the trial court had given insufficient consideration to the "very real and meaningful connection" between the benefits of the move for the mother and the quality of life for the children. 646 N.E.2d at 641. The court declared that children derive direct benefits from the financial and emotional well-being of a custodial parent, and it is simply inaccurate to characterize such benefits as "indirect." Further, the court did not believe that statutory or case law provided a noncustodial parent with a "veto power" over a relocation request, even if the parent enjoyed a good relationship with the children. The trial court's ruling in this case gave the noncustodial parent such a power. The case was remanded for the limited purpose of revising the visitation schedule.

Similarly, in Trent v. Trent, 111 Nev. 309, 890 P.2d 1309 (1995), a mother with primary physical custody sought to relocate to Ohio to marry a man who worked in his family's business. The mother was employed as a manicurist, earning $1,000 a month, and she lived in a converted garage. Often she was forced to borrow money from her parents to meet expenses. If she were to move to Ohio, her new husband's income would permit her to stay at home with the child. The trial court denied her petition, believing that elimination of the father's weekend visitation would be detrimental to the father-child relationship. The Nevada Supreme Court reversed, holding that reasonable alternative visitation was possible and the move was otherwise in the child's best interests. The court quoted its prior holding in Schwartz v. Schwartz, 107 Nev. 378, 812 P.2d 1268, 1271-72 (1991), that "`[the trial court] should not insist that the advantages of the move be sacrificed and the opportunity for a better and more comfortable lifestyle for the mother . . . and children be forfeited solely to maintain weekly visitation by the father . . . where reasonable alternative visitation is available[.]'" Trent v. Trent, supra, 890 P.2d at 1313; see also Wright v. Wright, 211 A.D.2d 341, 627 N.Y.S.2d 819 (1995) (mother with primary physical custody was allowed to move to Mississippi to marry man with established business there; child's-best-interests test governed case because parties' incorporated separation agreement expressly permitted relocation).

In some joint custody cases, however, courts have been less inclined to allow relocation for this reason. In Rowland v. Kingman, 629 A.2d 613 (Me. 1993), cert. denied, 114 S. Ct. 884 (1994), the mother, who had primary physical custody, was a physician with an established practice in Yarmouth, Maine. She lived in the former marital residence, while the father lived in a nearby town. The mother eventually married a man who lived in Oregon and sought permission to move with the children there. The trial court ordered that if the mother moved to Oregon, primary physical custody would shift to the father, on the condition that he reside in Yarmouth. On appeal, the mother argued that the trial court should have given more deference to her decision concerning the children's residence because she was the primary physical custodian. The Maine Supreme Judicial Court disagreed, finding nothing in the state's statutory or case law on joint custody that required any degree of deference to a primary physical custodian's decisions. In this case, the court believed that the children's interest in close contact with the father and in geographic stability outweighed the mother's interest in residing with her new husband.

At least one court in a remarriage case has considered whether the other parent could also relocate to the new state. In Rampolla v. Rampolla, 269 N.J. Super. 300, 635 A.2d 539 (App. Div. 1993), the parties shared physical custody of their children, with the father living in the former marital residence and the mother living close by. The father commuted on a daily basis to his job in New York City. The mother remarried a man who lived and worked in New York City, but her petition to move with the children there was denied. The Appellate Division of the New Jersey Superior Court reversed and remanded, directing the trial court to consider the feasibility of the father's relocation to New York City as well. The court believed that this possibility offered a welcome alternative to the "all or nothing outcome" of most relocation cases.

Return to Family. Another reason for relocation may be a custodian's desire to live near family members, who can offer assistance and support after the difficult experience of divorce. Courts sometimes permit relocation for this reason. In McQuade v. McQuade, 901 P.2d 421 (Alaska 1995), a divorcing mother planned to return to her native Texas to be near her family, who could offer financial assistance and emotional support. The trial court granted her primary physical custody and permitted the move. In affirming, the Alaska Supreme Court found no abuse of discretion in the trial court's finding that a custody award to the mother was in the child's best interests even though she planned to relocate. The mother's reasons for moving were legitimate and not intended to frustrate the father's rights.

Courts are more likely to permit relocation for this reason if another advantage, such as an employment or educational opportunity, is present. In Fuchs v. Fuchs, 887 S.W.2d 414 (Mo. Ct. App. 1994), a divorcing mother sought to return to her home town in Mississippi to be near her family and to escape the stigma of a felony conviction, which had hindered her efforts to secure employment in Missouri. The trial court awarded her primary physical custody but restricted her residence to southeastern Missouri. The Missouri Court of Appeals reversed the residential restriction, believing that the mother's relocation to Mississippi would lead to a higher quality of life for both herself and the child. The mother would be near family, her employment opportunities would be enhanced, and the stigma of her criminal conviction would be lessened for both herself and the child.

In a somewhat unusual case, Tamari v. Turko-Tamari, 599 So. 2d 680 (Fla. DCA 1992), the Florida District Court of Appeal permitted a mother with primary physical custody to move to Israel, where her entire family had emigrated. The court noted that although the father planned to remain in the United States, many of his family members also were relocating to Israel. Further, the father's custodial contact would not be significantly affected by the move, as the father had been living in New York while the mother and child were in Florida. Thus, instead of flying from Florida for visitation with the father in New York, the child would simply fly from Israel.

In other cases, courts have denied permission to relocate to another state to be near family. In Effinger v. Effinger, 913 S.W.2d 909 (Mo. Ct. App. 1996), a divorcing mother sought to return to her home town in Illinois, where her family still lived. She also had a job offer there. The trial court awarded her primary physical custody but restricted her residence to Missouri. In affirming, the Missouri Court of Appeals held that the evidence failed to show a benefit or advantage to the children from the proposed move. Although the mother had a job offer in Illinois, there was no evidence that she could not obtain comparable employment in Missouri. Further, the house she had secured in Illinois was smaller than her house in Missouri, and no evidence had been presented that the school system in Illinois was superior.

In some cases, the child's special needs outweighed the advantages of being near family. In In re Marriage of Sheley, 78 Wash. App. 2d 494, 895 P.2d 850 (1995), review denied, 128 Wash. 2d 1007, 910 P.2d 481 (1996), a divorcing mother sought to return to her native Texas, where her family still lived. She also had a job offer there. The trial court awarded her primary physical custody conditioned on her remaining in the Seattle area. The Washington Court of Appeals affirmed, noting evidence that the children had experienced difficulty adjusting to the family's move from Alaska to Seattle a few years earlier. The trial court's conclusion that another move would traumatize the children was amply supported by the evidence. Similarly, in Everett v. Everett, 660 So. 2d 599 (Ala. Civ. App. 1995), a divorcing mother planned to return to her family in North Carolina. The trial court granted her primary physical custody but restricted her residence to the county. In affirming, the Alabama Court of Civil Appeals noted that the child was being treated for Attention Deficit Hyperactivity Disorder (ADHD). The trial court had not abused its discretion in concluding that the child's need for stability and continuity in his environment outweighed any advantage to be gained by the move.

Fresh Start. In some cases, a custodian desires to relocate to another state simply to make a fresh start in life after the unpleasant experience of a failed marriage. Often, the custodian desires to relocate with a companion or new spouse. The results in such cases have been mixed.

Relocation for this reason was permitted in Swonder v. Swonder, 642 N.E.2d 1376 (Ind. Ct. App. 1994). Two years after the divorce, a mother with sole custody filed a notice of intent to move to Colorado, where the family had frequently spent vacations. The father sought a custody modification. As her reason for the move, the mother stated that she wanted to start a new life for herself and that she believed the climate in Colorado was healthier for the children. The trial court held that custody would be transferred to the father if the mother moved out of the state. The Indiana Court of Appeals reversed, however, noting that neither statutory nor case law placed any burden of proof on a relocating parent. Indeed, precedent established that a denial or transfer of custody based on the custodial parent's decision to move is improper when the move is made in good faith and out of a desire to improve the material or psychological life of the custodian, so long as a child's interests are not prejudiced thereby. In this case, the move was to improve the mother's psychological life, and the father failed to show resulting prejudice to the children. Thus, a modification of custody based on the move was improper. See also Wages v. Wages, 660 So. 2d 797 (Fla. DCA 1995) (reversing custody transfer to father when mother with primary physical custody moved to Kentucky with new husband to start new life).

In contrast, a mother who moved out of state to start life anew lost physical custody of the child in Connelly v. Connelly, 644 So. 2d 789 (La. Ct. App. 1994). Ten years after the divorce, the mother moved to Virginia because she needed a change. The father obtained a transfer of physical custody, and the Louisiana Court of Appeal affirmed. The move constituted a changed circumstance, and the child's best interests required his return to Louisiana. The court noted the undesirable "uprooting" effect of leaving extended family, school, friends, and activities, and pointed out that the mother lacked a good reason for the move. See also DeBeaumont v. Goodrich, 162 Vt. 91, 644 A.2d 843 (1994) (mother who moved to Pennsylvania with boyfriend lost physical custody); Wittig v. Wittig, 215 A.D.2d 927, 626 N.Y.S.2d 863 (1995) (permission to relocate was denied to mother with primary physical custody who sought to move to California with boyfriend).

VIII. CONCLUSION

This survey of recent cases involving the relocation of a parent having sole custody or some form of joint physical custody of a child has revealed that there is no uniform approach to the issue. When deciding relocation petitions, a few states permit relocation upon a simple showing of proper motive, other states presume that relocation should be permitted and require the other parent to rebut the presumption with reference to specific factors, and still other states require the relocating parent to show that the move is in the child's best interests, often (but not always) with reference to specific factors. Until recently, the courts of New York required the relocating parent to prove that the move was required by "exceptional or compelling circumstances."

When deciding custody modification motions based upon relocation of the custodial parent, most states require the movant to show the existence of changed circumstances warranting a custody transfer. A few states require the movant to make an additional showing that the child's present environment endangers the child's health or well-being.

Despite the lack of a uniform approach, the general trend appears to be in favor of permitting properly motivated relocations and denying custody transfers. The trend is demonstrated by the New York Court of Appeals' recent abandonment of the exceptional circumstances test in favor of a general child's-best-interests standard, Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d 575 (1996), the California Supreme Court's reversal of a requirement that the relocating parent prove the necessity of the move, In re Marriage of Burgess, 13 Cal. 4th 25, 51 Cal. Rptr. 2d 444 (1996), the Florida Supreme Court's creation of a presumption favoring relocation, Russenberger v. Russenberger, 669 So. 2d 1044 (Fla. 1996), the Tennessee Supreme Court's strengthening of the presumption favoring relocation, Aaby v. Strange, 924 S.W.2d 623 (Tenn. 1996), and the Nevada Supreme Court's declaration that the state's removal statute should not be used "as a means to chain custodial parents, most often women, to the state[.]" Trent v. Trent, 111 Nev. 309, 890 P.2d 1309, 1313 (1995). This trend recognizes that "`[t]he family unity which is lost as a consequence of the divorce is lost irrevocably, and there is no point in judicial insistence on maintaining a wholly unrealistic simulation of unity.'" In re Marriage of Sheley, 78 Wash. App. 2d 494, 895 P.2d 850, 855 (1995), review denied, 128 Wash. 2d 1007, 910 P.2d 481 (1996) (quoting Helentjaris v. Sudano, 194 N.J. Super. 220, 476 A.2d 828, 832 (App. Div. 1984)). Each parent must be permitted to move on in life, and the child will benefit directly from an improvement in the custodial parent's life circumstances. In re Marriage of Eaton, 269 Ill. App. 3d 507, 646 N.E.2d 635 (1995). Even though weekly contact with the other parent might be rendered impossible by a move, the child's relationship with that parent can be adequately and meaningfully preserved through visitation in large blocks of time. Trent v. Trent, supra.

Courts are most inclined to permit relocation when the proposed move will result in the economic betterment of the relocating parent, and thus of the child. Personal reasons for relocation, such as remarriage or a desire to be near family, also may justify relocation, especially if they are combined with an economic advantage. A simple desire to make a fresh start in a new location is occasionally, but not always, regarded as a valid reason.

In cases involving shared or alternating physical custody, however, permission to relocate is much more difficult to obtain, for the obvious reason that relocation would require termination of the existing custody arrangement. In such cases, courts have usually denied permission to relocate or have modified custody in favor of the parent remaining in the state.

Few types of domestic relations cases present such difficult issues. In the vast majority of relocation cases, the motives of the parent seeking to relocate are sincere and the proffered reasons are legitimate. The desire of the other parent for continued regular contact with the child is equally valid. In the face of such strongly competing parental interests, a determination of where the child's best interests lie is often a formidable task. Whatever the court decides, the child will inevitably suffer some loss. The goal of the courts and parties alike should be to make that loss as minimal as possible.

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