If moving was not expressly addressed in a child custody judgment, then an opposing parent must request a custody hearing to determine whether a move is permitted or prohibited. In general, courts allow that:
- Either parent is usually allowed to move without the children at any time
- Either parent is allowed to give up their custody to the other parent to make their own move easier
- Neither parent is allowed to move the children without the consent of the other parent or a court judgment
What Should I do if my Former Spouse is Planning to Move with our Child?
To prevent your former spouse from moving with your child, or if your former spouse has already moved with your child, you should go to court immediately and request a hearing.
What Court Should I Go To?
The family court that will hear your case (and has "jurisdiction") usually remains the same as where you filed for divorce or previously had child custody matters decided. If you've never had a court order, no court has jurisdiction until someone files for divorce or child custody.
What Will I Need to Prove to Prevent the Move?
The decision to allow or prevent a move is generally based on what is best for the child. Depending upon the jurisdiction, the burden may be either on the custodial parent to prove that the move is in the child's best interest or on the non-custodial parent to prove that it is not. In recent years, more courts have generally given strong preference to the rights of the custodial parent and have therefore been more lenient in permitting moves, even out of state.
What Will the Court Consider?
In considering the validity of an opposition to the move, the court will generally consider:
- Whether the opposition is in good faith or out of malice
- Proof that the move is not in the best interests of the child - both that the benefits claimed by the custodial parent are not true and that adequate visitation cannot be replicated
- Whether malice is a motivation for the move by the custodial parent.
Do I Need a Family Lawyer?
If you are seeking to enforce your visitation rights with your children and your former spouse is thinking of moving or has already moved with your child, it is wise to consult with a child visitation lawyer to discuss how to deal with this and get a hearing before a judge. Working with an experienced family lawyer can help you understand your rights and help you deal with the complicated legal system.