Child custody laws vary by state, but in general the number one rule is that the child comes first. This means that the child’s best interests are placed over any of the parent’s personal preferences. Essentially, child custody typically involves one parent being designated the custodial parent, meaning that parent has the legal right to make major life decisions on behalf of the child. This parent has both legal and physical custody over the child.
The other parent, known as the noncustodial parent, is generally granted visitation rights. Visitation rights are rights to spend time with the child, at a time and place that has been agreed upon by both parents. The terms of such an arrangement are laid out in a child visitation agreement, or a child visitation schedule.
When determining child visitation, here are a few of the more common factors the court will consider:
- The age of the child in question;
- The overall wellbeing of the child;
- The location and stability of each parent;
- Both the current employment and work history of both parents;
- Each parent’s work and daily schedules; and
- The child’s living preference, if they are old enough to state a preference.
The child visitation agreement outlines each parent’s visitation rights, as well as their duties and responsibilities. A typical agreement may contain:
- The child’s main residence;
- A detailed visitation schedule;
- Geographic restrictions; and
- Instructions for future modification, if necessary.
If there is evidence of past issues, such as abuse or domestic violence, the judge will absolutely take these factors into consideration. They may sometimes require supervised visitation. In rare cases, the judge may order no visitation at all, if that is in the child’s best interest. If both parties are able to reach an agreement on child visitation and submit it to the court for approval, the process will be fairly simple, quick, and painless.
Although the custodial parent typically has more legal rights to the child, they cannot move the child away from the other parent without first going through a modification process. If moving away was not specifically addressed in the child custody judgment, the opposing parent must request a custody hearing. The purpose of the custody hearing is to determine whether the move would be in the child’s best interest, and whether the relocation is permitted or prohibited.
Generally, courts will allow:
- Either parent to move, anywhere at anytime, without the child;
- Either parent to give up their custody to the other parent in order to make their own move easier; and
- Neither parent to move the child without the consent of the other parent, or a court judgment, as was previously mentioned.
In order to prevent your former spouse from moving with your child, or if they have already moved without due process, it is important that you immediately go to the court and request a hearing.
The family court that has jurisdiction and will hear your case is typically the same court in which you filed for divorce, or had previously determined your child custody matters. If there was no court order to begin with, no court has jurisdiction until one of the parties files for divorce or child custody.
In general, most states do allow for relocation, as long as the move is in the overall best interest of the child. Some of these beneficial interests include:
- Better educational opportunities;
- Improved quality of life;
- More disposable income, such as through a better job opportunity for the parent;
- Emotional benefits, such as living closer to other family members; or
- A new marriage.
In addition to determining the best interest of the child, the court may place the burden on proof on either parent. This is done in order to prove that the move would indeed be best for the child. Regardless of which parent receives this burden, the court generally will balance the following three factors:
- The custodial parent’s right to move freely;
- The best interest of the child given the specific circumstances; and
- The right of the non-custodial parent to maintain a meaningful relationship with their child, and how a move might harm that meaningful relationship.
Additionally, the court will consider whether the move or the opposition to the move is not motivated by maliciousness or bad faith. They will also consider whether the relocating parent will comply with any substitute visitation arrangements.
In recent years, the courts have generally given a stronger preference to the rights of the custodial parent. Therefore, they have been more lenient when permitting moves, including out of state moves.
It is in your best interest to consult with a skilled and knowledgeable child visitation attorney. They will assist you in enforcing your visitation rights if your former spouse is considering moving with your child, or has already moved.
The attorney will know your state’s laws, and will be able to get a hearing before the judge in order to resolve the issues. Further, they can ensure you understand your rights as either the custodial or noncustodial parent. They can also assist with any needed child visitation modifications.