In-State Relocation as Grounds for Custody Change

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 What is Custody?

Custody is the care, control, and maintenance of a child. A child’s parents are both presumed to be the natural and proper custodians. However, the court may be sought to determine the custody of children in some scenarios. The best interest of the child standard typically guides the court’s decision. Keep in mind that there are several types of custody:

  • Joint legal custody is when both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child, even though the child’s primary residence may be with only one parent;
  • Joint physical custody is where both parents share physical and custodial care of the child;
  • Sole custody gives a parent the primary responsibility for the care of the child. That parent makes all the daily decisions about his or her child’s life.

What is Modification of Custody?

Generally, all states will have a modification process that you need to follow listed on their local county website. For instance, in Maryland when a parent seeks to change the custody order, it is that parent’s burden to show the court why it should be changed. The court follows the notion, “if it is not broken, do not fix it.”

This is based on the idea that stability is the favored pathway for the child unless you can demonstrate that there is something in the environment that will harm the well-being of the child. But, this may not be as simple as it seems. You will have to prove that your home will be better than the home of the custodial parent.

To achieve this, you must demonstrate that there has been a substantial change in circumstances and that it is in the child’s best interests to make the change you are proposing. If the two homes are considered to be equal, then custody will stay as it is. Remember, a temporary lite custody order is not a final order. You would not be mandated to show a substantial change in circumstances to have temporary custody modified in the permanent custody order.

The court that allows the original custody and visitation order retains jurisdiction to decide modification unless the parties and child no longer have close ties to the court and the court surrenders its jurisdiction. However, the court with original jurisdiction may refuse to hear the custody case if a child has been wrongfully taken from another state or taken without the consent of the person entitled to custody.

What Happens When The Parents Want To Relocate the Child?

Removing a child to another state generally makes it much more difficult for the parent left to have frequent contact with the child. In a typical custody order, a non-custodial parent may be granted parenting time with the child every other weekend from Friday evening to Sunday evening and dinner time every Wednesday.

For example, if the custodial parent with such a parenting-time schedule moved with the child from New Jersey to Florida, it would be practically impossible for the parent remaining in New Jersey to see the child on the schedule ordered by the court. Therefore, several laws create restrictions on a parent removing a child from another state. It is considered a crime to withhold a child from the other parent during court-ordered parenting time.

Unless the child moves nearby to a neighboring state, moving a child to another state forms such a barrier to parenting time that the parent who moved the child may be charged criminally with unlawful interference of parenting time. An exception may be made if the custodial parent who removes the child is fleeing from immediate risk of physical harm from the other parent or immediate risk of harm to the welfare of the child. However, keep in mind that the custodial parent has to report the removal and the reason within 24 hours to the local police.

Additionally, a parent who wishes to move with a child to another state should discuss these plans with the other parent. Under New Jersey law, a parent may remove a child to another state only with either:

  • Consent of the other parent or;
  • A court order granting permission;
  • Or unless the parent is fleeing immediate risk, as mentioned above.

If both parents come to a consensus that the custodial parent will move to another state with the child, the moving parent should first request the non-custodial parent to sign a written statement that he or she agrees to the move. Most states permit a simple typed or neatly handwritten paper stating that the non-custodial parent grants the custodial parent permission to move with the child outside of their home state.

The paper should be signed by both parents, before a notary if possible. The law does not require consent to be in writing, but it is useful in avoiding a misunderstanding or last-minute change of heart.

Furthermore, if the non-custodial parent does not agree to the child leaving for another state, the custodial parent must ask the court for an order granting permission to remove the child from the other state. If the custodial parent moves or states an intent to move shortly with the child to another state, the non-custodial parent may ask the court (on an emergency basis, if necessary) to enter an order prohibiting the custodial parent from moving the child out of the home state, at least until a court has the opportunity to hear the case.

Also, the custodial parent can file formal papers with the court (called a motion or application, depending on whether the parents are divorced) to remove the child to another state, and that parent must show factual statements that indicate that the move is in the child’s best interest. This begins with explaining the reasons for the move, such as new employment or supportive relatives in the other state.

Because moving the child to another state will impact the current order, it is also a request to modify the current custody and parenting-time order. Similar to a custody hearing, the parent seeking to move with the child must address the factors that are listed in the child custody statute in the local state related to the best interest of the child.

For some states these may consist of:

  • Parents’ ability to agree and cooperate;
  • The parent’s willingness to accept custody;
  • Whether there has been a history of interference with custody from either parent;
  • How is the child’s interaction with parents or siblings;
  • Whether there is any history of domestic violence in the household;
  • Any additional safety factors;
  • Whether the child has a preference;
  • What are the needs of the child;
  • Whether there good access to education;
  • Whether the parent fit to take care of the child;
  • What is the extent of and quality of time spent with the child and;
  • Who is fiscally responsible for the child;

Lastly, a non-custodial parent who does not want the child to leave the home state must respond to the request with a reply certification that corrects any inaccurate statements in the custodial parent’s papers. The non-custodial parent must also state the reasons that the child should not leave the current state.

When Do I Need to Contact a Lawyer?

Relocating a child away from one parent is a difficult situation to deal with. If you are facing an issue concerning this it may be useful to seek out a local child custody attorney to assist you with the process.


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