Removal refers to the situation where the custodial parent moves the child away from the non-custodial parent. Removal issues can present some challenges in a child custody situation because it may affect the non-custodial parent’s ability to exercise visitation rights. It can also have effects on an existing custody or visitation order.
Removal is similar to the concept of “relocation”, and the two terms are often used interchangeably. However, removal can sometimes imply that the child’s well being is compromised in some way by the non-custodial parent. For example, there may be circumstances involving abuse or neglect. In such cases the child is considered to be “removed” from the situation.
On the other hand, relocation implies that the custodial parent is simply changing geographic locations, most commonly due to a change in employment or residence. State laws may vary on the different requirements regarding removal and relocation.
Removal requirements vary greatly from jurisdiction to jurisdiction. In general, the guiding principle that courts use when approving removal requests is that the removal must be in the child’s best interests.
This means that the removal should serve to benefit the child and enhance their growth and development. The burden of proof in determining the child’s best interests is usually upon the parent that is seeking removal. If the removal is not in the child’s best interests, a court will definitely deny such a request.
The next greatest concern in any removal situation is the issue of notifying the non-custodial spouse. In most cases the custodial parent is required to inform the other parent that they will be moving, and must provide ample notification as to their whereabouts. States have different laws regarding the notice requirement in a removal hearing.
Finally, some states require the custodial parent to get court permission before removing a child from the jurisdiction. This allows the custodial parent to legally relocate or remove the child to another jurisdiction or state for a long-term basis.
Some factors that a custody court will consider when determining whether removal is appropriate include:
- Whether the removal will be temporary or permanent
- Whether the removal will be out-of-state or within the same geographic region (some states only define removal as being out-of-state)
- Whether a workable visitation schedule can be maintained even after removal
- Whether the removal serves a genuine, legitimate need or only serves the purpose of frustrating the other parent’s custody and visitation rights
- Whether the non-custodial parent has opposed the removal
A judge under certain circumstances may actually require the removal of a child from a parent. For example, if the non-custodial parent has a history of abusing or neglecting the child, removal may be prescribed as a means of avoiding risks to the child’s safety, health and well being.
A removal order should be requested during the custody hearing or when setting a visitation schedule. You should first locate where to file for the removal order. If this is first time you are seeking a custody hearing or a removal order, the basic rule is that filing should be done in the county where the child has resided for the past six months.
If you have an existing custody order, then you should request to modify the custody and visitation order. This is also to be filed at the original county where the custody order was first issued. When you go to court to request a removal order, the judge does not automatically give you permission for removal. The judge will look at the following:
- What the child’s needs are
- If there is a important reason for the move or removal
- Where the child’s best needs would be
- If the child’s situation will be better or worse by moving out of state
Removal issues are very serious matters, since they can have great consequences on the future of the child. You should contact a child custody lawyer if you feel that you need a removal order. A family law attorney will be able to determine the exact removal requirements for you particular jurisdiction. If the removal involves the interaction of several different state laws, a lawyer will be able to explain the laws to you and help you obtain the best possible outcome for your child.