When a couple with children divorces or separates, child custody will need to be determined. The parents will either agree on a custody arrangement, seek help from a mediator or present their cases before a judge who will decide the custody arrangement. A child custody order will then be entered, which is legally binding. If it can be accomplished, courts will always favor custody orders that allow both parents to maintain frequent and continuing contact with the children.
Sometimes, one or both parents will need to move, whether it be for a new job opportunity or personal reasons. However, this can cause problems with the child custody order if the move would interrupt the custody and visitation schedule. The parent needs to consider if the move is necessary and how it will affect their children. They should also become informed of any legal consequences that could result from the move.
What Steps Should be Taken Before the Move?
If you are a divorced or separated parent subject to a child custody order and are thinking about moving, there are certain steps you will need to take to make the process as smooth as possible. This will include the following:
- Consider Your Children First. Think long and hard about whether you need to make the move and if doing so is in the best interest of your children.
- Evaluate Your Motives. Courts will not look favorably on you if it appears that your intended move is designed to interfere with the other parent’s visitation rights.
- Review the Child Custody Order. Check the order to determine if it addresses parent relocation. If it does not, check whether your move would make the current parenting schedule impractical. If you are moving far away then the schedule will be disturbed, especially if both parents have significant custody and/or visitation rights.
- Prepare for Court: Before taking the matter to court, meet with a local family attorney to discuss your options. An attorney can inform you of your chances of receiving a move away order and can file a motion on your behalf.
- If you are the parent with the most custody rights, come up with a plan that would allow the other parent to have frequent and continuing contact with the children. This may include giving them substantial visitation during summer or extended school breaks.
- Provide Notice: You will need to give the other parent written notice of your intent to move. Your current custody order or your state’s laws will likely require this notice.
Keep in mind that moving only a short distance away will likely not pose a problem. Issues will arise when a parent intends to make a significant relocation - such as moving out of state or hours away from their current place of residence. You should prepare for some resistance to the move from your children, other parent, and the court.
What Factors Will the Court Consider?
After filing a motion for a move away order, the court will have to evaluate the situation to determine if the move is in the best interests of the children. If evidence shows that the move will create a significant risk of harm for the children, there is a good chance that the motion will be denied.
In most states, the custodial parent will have a presumptive right to relocate and take their children with them. If the other parent disagrees with the move, they will have to present evidence to convince the court that the move would be detrimental to the child’s welfare. When determining this the court will look at several factors, such as:
- The Ages of the Children: For example, if the child has completed the majority of their schooling in one area and is almost done with high school, the court may find the move detrimental.
- Community Ties or Significant Community Involvement: This could include involvement in school activities, community volunteer groups and church groups. For example, if the child is a high school student who has a sports scholarship dependent on them completing the season(s) with their school team, this could be a reason to deny the move order.
- Special Health and Educational Needs: An example of this is if the child has a health condition where they would receive the best treatment in the area they already live in, the move order could be denied.
- The Preferences of the Children: The judge will sometimes allow the children to testify as to where they want to live. This will usually be a discretionary call up to the judge.
- Other Significant Ties to the Area: If this child has a job, this could be viewed as another reason to deny the move order.
If the court finds that the move would be harmful to the children in any way, it can deny the move order and modify the current custody order accordingly. On the flip side, if the parent who wishes to relocate presents more evidence showing that the move would improve the quality of life for the children, the court will likely grant the motion - especially if they are the primary custodial parent.
Should I Hire an Attorney for a Parent Relocation Issue?
Parent relocation can be a complex situation that requires legal assistance. An experienced family attorney can advise you of your rights and the state laws that will come into play. An attorney can also prepare you for any objections to the move and come up with a plan that is beneficial to the children and both parents.