Relocation Of Custodial Parent To Another Country

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 What Does a Court Consider When Determining Relocation Issues?

The custodial parent is the parent who is granted custody of a child or children by a court in a divorce or child custody proceeding. Typically, if an individual is the primary custodial parent, they may be able to relocate with their child.

Whether or not an individual can relocate their child out of state will depend on the child custody laws of the state and whether or not the noncustodial parent agrees with the relocation. The majority of states allow the primary custodial parent to relocate with their child as long as the move is beneficial to the child.

Common reasons that the court may find a move to be beneficial for the child include:

  • New job: A new job that provides more disposable income for the custodial parent is one of the most common beneficial reasons given for relocating a child;
  • Remarriage: Another common reason given for relocation is that the custodial parent has remarried;
    • This is often seen as beneficial because there are more caretakers available for the child. Further, the additional disposable income is also seen as beneficial;
  • Educational opportunities: A custodial parent who is seeking relocation with their child for educational opportunities, for example, being accepted into a graduate program, will often be allowed to relocate by courts; and
  • Family connections: Relocating to a different area to be closer to family is often viewed as being beneficial for the child.

In many cases, the noncustodial parent will not agree with the relocation of the child and a dispute may arise. Unless there is an express agreement with the noncustodial parent for relocating, the court will determine whether or not to permit it.

When determining whether or not to grant a custodial parent’s request for relocation, the court will use the child’s best interest standard. Under this standard, the court may examine several factors when determining whether a relocation is in the child’s best interest, including, but not limited to:

  • Child’s opinion: If a child is old enough, the court may consider their preference regarding the relocation. For example, the court may consider the child’s preference to remain in their current location, in order to not:
    • lose friends;
    • miss out on extracurriculars; or
    • change schools;
  • Distance of move: A court will consider the distance of the move when determining whether the relocation is in the best interest of the child. For example, courts will favor a shorter or in-state move over a long distance move. This is because shorter moves will often have less of an impact on the child’s relationship with the noncustodial parent than long distance moves;
  • Quality of life: The court will consider whether or not the child’s quality of life will improve if they relocate. This means that courts will examine all of the beneficial reasons for the move, for example, educational benefits;
  • Agreement by noncustodial parent: A court will examine whether or not the noncustodial parent agreed to the move. If the noncustodial parent is in agreement with the move, the court will likely grant it; and
  • Intent of relocating parent: A court will look at the intentions of both parents when determining the child’s best interest. A court will not look favorably upon a parent who does not provide adequate notice to the other parent of the move;
    • For example, if a custodial parent’s reason to move is to prevent the other parent from interacting with the child, a court will likely not grant the relocation. In general, it is in the child’s best interest to have a continued and meaningful relationship with each parent.

Does a Custodial Parent Need Permission from the Noncustodial Parent When Relocating to Another Country?

In the past, moving out of a jurisdiction where custody has been established without the consent to the noncustodial parent was prohibited, primarily for two reasons, including:

  • The original state of jurisdiction would lose jurisdiction; and
  • The noncustodial parent would have an obstacle in maintaining a significant relationship with the child or children.

Changes in family laws as well as the custodial parent’s right to travel and move more freely have since altered the landscape and have resulted in a trend more friendly to the custodial parents’ right to relocate. This means that a custodial parent may have an easier time moving out of the country with a child.

What Are the Laws Governing the Relocation of a Custodial Parent To Another Country?

The principles and laws that govern the relocation of a child by their custodial parent will also apply to relocating abroad with the child. Because child custody matters are determined by the state laws, each state will differ in their treatment of custodial relocation.

What Are the Practices that States Follow?

Currently, the trend that is being adopted by states is to permit relocation by the custodial parent unless the move is prompted by:

  • Bad faith;
  • Maliciousness; or
  • An intent to keep the child from seeing the noncustodial parent.

There are three approaches that are taken by different states to determine whether or not to allow a custodial parent to relocate, including:

  • Certain states have the traditional view that relocation should not be permitted unless doing so is in the best interests of the child;
    • The criteria for determining whether or not relocation is in the best interest is stringent and typically requires a substantial showing that the quality of life for both the child and custodial parent are improved;
  • Other states have adopted the trend to permit relocation unless it is shown that the relocation will have the effect of hurting the child; and
  • A handful of states are reviewing each relocation request on a case-by-case basis to determine the best interests of the child and assess whether relocation should be permitted.

Is it Easier to Relocate to Certain Countries Over Others?

Whether it is easier to relocate to certain countries over others will depend on the state where the custodial parent currently resides as well as the country in which they seek to relocate. Countries including Canada, Mexico, and Caribbean countries may be easier to relocate to than states within the United States if the other country is a neighbor to the original state.

There are some states, however, that may base their decision not to permit relocation if the move would effectively deprive the noncustodial parent of the opportunity to visit their child.

Does the Noncustodial Parent have Any Remedy?

Depending on the approach that is taken by the state where custody was established, a noncustodial parent may have several options for remedies. This may include:

Do I Need A Family Lawyer?

A custody dispute can be very emotional and complex. Without the consent of the noncustodial parent, a relocation to another country may be difficult.

If you are seeking to relocate to another country, it is important to have the assistance of a child custody lawyer who can demonstrate to the court why the move will be in the child’s best interests. If you are a noncustodial parent, having a lawyer will help ensure that you are still provided with the opportunity to visit with your child.

Whether you are a custodial parent or a noncustodial parent, your lawyer can advise you of the approach taken by your state, and, if relocation is permitted, under what circumstances may it be granted.

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