One of the more contentious issues in a custody case arises when one of the parents wants to relocate to a distant location or another state, and the other parent is worried about a loss of access to the child and long-distance visitation. When a custody order is in place, the order will usually describe when a parent has to obtain court permission to relocate.
But what happens if a parent wants to move before a custody order is issued? What must a parent prove to a court in order to get permission to relocate?
The most complicated move-away cases involve parents who live in the same home or community, with one parent wanting to move away with the children.
Where one parent is a primary caregiver, the greater the distance between the parents homes, the more likely it is that relocation will be permitted. Even if both parents still live in the same state, most states are very large. It is difficult for a parent who already lives hundreds of miles away to justify why the other parent and children should be tied to a particular community.
Before a custody order is entered by a court, as long as paternity has been established, both parents have broadly equal rights to custody. The details may vary to a degree by state, based upon how paternity is established, but as a general rule either parent may relocate with the children without first going to court.
However, having the right to do something does not necessarily make it a good idea. When you relocate with the children without permission, the other parent may respond by filing a custody case in the state where you previously lived, asking that the children be returned to that state pending further custody proceedings.
Although the court cannot order a parent to return, if the children are ordered returned the parent has two choices:
Return with the children and try to maintain temporary custody during subsequent legal proceedings; or
Allow the children to return to live with the other parent, and try to fight a custody case long distance.
In a custody case, the parent who is caring for the children during the custody proceedings will usually have an advantage when the court renders its decision. Continuity is important and, although the weight that a court may give to maintaining continuity may vary based upon state law or the full facts, the parent with custody during court proceedings has a good chance of being awarded custody at the end of a case.
Under a law called the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), which is part of every state's law, you will normally have to wait six months to file a custody case in your new state of residence before you can be reasonably certain that the court in that state will hear the case. Prior to the end of the six month period, you should expect that the custody case will be heard in the former state of residence, meaning that if you relocate without court permission you will have six months during which you will have to wait and worry about custody proceedings being commenced in your former state.
A small exception: if you move while pregnant, jurisdiction will be properly placed in the state in which the child is born.
Once the parents of children have a custody order in place, the order will often include a provision relating to the relocation of the child's primary residence.
In some states, the order will contain restrictions on long-distance relocation of either parent, even though one has primary or sole physical custody. If one or both parents move without seeking permission, the other can take the matter to court. If the other parent opts not to take the issue back to court, as time passes, if later brought to the court's attention the parents can expect the court to deem the issue waived.
In some contexts a court might view a petition to relocate as an adjustment of parenting time, meaning that if the court finds grounds to allow the relocation the court may grant the relocation without hearing the other parent's argument for a change of custody.
In other cases, the totality of the circumstances may cause a court to find that the relocation along with other factors would constitute a material change of circumstances, and entertain a motion to modify custody.
If there is no existing custody order, a parent may file a petition to establish a custody order and may request permission to relocate as part of that petition. When a custody order is in effect, states take two general approaches to move-away cases:
Court Permission Required: Some states and custody orders require all long distance move-away requests to be submitted to the court for approval. Although a parent may waive the issue by not bringing the matter to court after the other parent relocates, a parent who relocates without seeking permission runs the risk that a court will order the children returned pending further proceedings, and increased risk that the court will be skeptical of the parent's motives and willingness to foster a long-distance relationship with the parent left behind.
Court Proceedings Required Only Following Objection: In some states a parent seeking permission to relocate must serve a formal notice on the other parent. If the other parent objects, that parent may petition a court to prevent relocation. If no petition is filed, then consent is presumed and the relocation may proceed as described in the notice.
It's important that parents understand the laws of their state and review any existing custody orders before commencing or trying to oppose a contested move-away petition. The parents' existing custody order will often describe move-away restrictions and procedures.
If parents agree on a move-away, but don't want to follow the requirements of their custody order or have a new custody and visitation order entered by a court, they may proceed with their new, agreed arrangement, but if problems later arise the informality of the arrangement may create significant difficulty for a parent who wants to enforce its terms.
- Parents who agree to a modification should consider having a stipulated order - an order with which both parents agree - entered by the court
- If parents choose not to involve the courts or lawyers, it is a very good idea for them to write down the terms of their new custody arrangement and long-distance visitation plan, and for both to sign and date the agreement. If a dispute later arises, either parent will be able to document that agreement to the court.
But even with an agreement, it truly is best for parents to comply with the requirements of their state and obtain an amended custody order before a relocation.
Although the details may vary by state, most states have similar factors that are considered when a parent requests permission for a long-distance move.
The Reason for the Move: Courts may review the reasons for the proposed move. Courts understand that sometimes parents need to move away to take a new job, or because their new spouse has taken a job in another state. They understand that sometimes after a break-up or divorce a parent will want to relocate for greater family support. Not all states require a parent seeking permission to relocate to explain why they want to move, but all states will consider evidence that a move is being made in bad faith, for example, to limit the other parent's access to the children.
The Distance Involved: The greater the distance that the move will create between the children and the non-custodial parent, the more disruptive the move is likely to be to the parent-child relationship. Courts may consider distance, along with any measures that may be taken to ameliorate the effects of increased distance, when reviewing a move-away case.
The Proposed Parenting Plan: A court may consider the proposal from the parent seeking relocation as to how visitation and contact will be continued after relocation, and may also consider the cost of visitation and how the increased cost will be shared between the parents.
The Proposed Community: Although it's not ordinarily a significant issue, sometimes relocation may raise issues about the safety or appropriateness of a new community. For international relocation, issues of culture, language, and safety may become more significant factors. In some cases, if a parent wants to relocate to a country with a poor record of honoring U.S. custody orders, a court may want some reassurance that the parent seeking relocation intends to obey its orders.
Impact on the Children: A court may consider how relocation is likely to affect the children, based upon the children's age, schooling, and social and community factors.
The Child's Preference: Although it is not normally a factor for move-away cases, if there is an argument that the move-away would constitute a material change of circumstances and the child is old enough to state an informed preference, the court may entertain the child's preferences in relation to relocation and custody.
If you are worried that the other parent may plan to relocate with the children, strategies that you may take to make that less likely include:
Being a Good Co-Parent
The more involved you are in your children's lives, and the more they look to you to fulfill their day-to-day needs, the stronger your position will be to obtain a custody order that recognizes your co-parenting. A record of good communication and cooperation with the other parent on parenting issues is similarly helpful.
If the other parent seeks permission to move as part of an original custody action, you can use your record to argue for joint or sole custody within your community. If the parent later seeks permission to relocate, a change of a roughly equal parenting arrangement is much more likely to result in a court's treating the petition as a modification of custody as opposed to a simple move-away case.
Prepare a Solid Argument
When the other parent makes an argument for relocation, you should be prepared to counter that argument. Learn the factors that your state's court considers in move-away cases and start collecting evidence that supports keeping the children in the community.
Examine Reasons for the Move-Away
If you believe that the move-away is being proposed in bad faith, to separate you from the children, it's not enough to simply present that claim to the court. You need to try to find evidence to support your position.
If you can't find evidence of bad faith, you should assume that the court will find that the petition is being made in good faith. Focus on the facts instead of your ex's motivations: you can evaluate the reasons stated in support of the proposed move and find evidence to counter them. For example,
- If the move is proposed over a new job, perhaps there are similar or better job opportunities locally.
- If the other parent touts the schools in the proposed new location, you can find a lot of evidence about school quality online and use that information to dispute any exaggerated claims about the new community's schools.
- A parent who wants to relocate to pursue a degree at a distant educational institution may have similar or better opportunities that don't involve relocation.
Some states are very friendly to move-away petitions by a primary custodian. It is a good idea to consult a custody lawyer for clarification of the move-away factors for your state, and how you might prevent a possible relocation or effectively oppose the other parent's request.
When a child is born to an unmarried couple sometimes a mother will move away before the father has established paternity. If the father wants to oppose the mother's relocation, it is necessary for him to file a paternity action, along with a petition for a custody order and an order that the children remain in the state or be returned pending the outcome of proceedings.
If the children are already out of state and paternity has not yet been established, the father will be at a distinct disadvantage. Until his legal parentage is established he has no right to custody, and during the time it takes to establish paternity the mother may establish a stable custodial environment with the children in the distant location.