Custodian's Relocation and Modifying Child Custody

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A child custody decision is not truly "final" until the child reaches majority, and because the child's best interests are the court's primary concern, changed circumstances can be the basis for a petition to modify any aspect of a custody decision.

There are numerous circumstances that can serve as the basis for a petition to modify, and the relocation of the custodial parent is one that arises frequently. Can the custodial parent relocate with the child regardless of the non-custodial parent's wishes? What can the non-custodial parent do to prevent relocation?

Travel Restrictions

Does the existing custody decree include a travel restriction on the parties' ability to move the child beyond a specified geographical limit? Such travel restrictions are common and can be imposed by the language of the decree itself, by the parties' agreement, or by statute, regardless of the parties' intentions.

As the custodial parent, you need to be aware of travel restrictions. If such a restriction exists, you must get court approval before you relocate with the child. If you move the child without court approval, you risk being held in contempt of court.

If there is no travel restriction of any sort, then many states allow the custodial parent to move the child without court approval and with the risk of being held in contempt. What recourse does the non-custodial parent have in such instances? He or she can file a petition for a modification of custody on the ground that a transfer of custody is the only means of maintaining a continuous relationship with the child.

Operations of State Law

Besides statutorily-imposed travel restrictions, the laws of the various states impact directly any modification petition that is based upon relocation of the custodial parent. Some trends in the law include:

• In some states, such as Nevada, the intention to move out of state either can or will constitute a change of circumstances sufficient for the court to decide whether the move is in the child's best interests
• Some state statutes, such as in Georgia, require a custodial parent to give a minimum number of days' notice of intention to move from the jurisdiction
• Courts in Louisiana and other states find that while removal of the child is not per se cause for modification, it is one important factor in determining whether there has been a change of circumstances sufficient to change custody
• Courts in Florida, Pennsylvania and other states have found that insignificant geographical changes, such relocation to a nearby city, generally will not constitute a substantial change in circumstances that warrant modification
• Some states, such as Colorado, give a presumption in favor of the parent who seeks permission to relocate, and in such jurisdictions, the non-custodial parent carries the burden of proving that the relocation is not in the child's best interest
• In states like New York, the courts give deference to the custodial parent's decision to move, so long as the reason for the move is not to defeat the non-custodial parent's visitation rights, and
• Some states, such as Maryland, place the burden on the custodial parent to show that the removal will not undermine the child's best interests

As you can see, the laws on modifications based upon relocation vary from state to state, and any parent seeking or opposing a modification needs to take care to determine the laws applicable in your state, or seek the assistance of an attorney who is experienced in child custody matters.

Factors that Impact the Determination of a Petition for Modification

Despite the variances in state law, there are several factors that all courts are likely to consider when presented with a petition for a modification of child custody based upon the relocation of the custodial parent. Just as with an original determination of child custody, the best interests of the child is the courts' primary concern: What effect will the proposed relocation have on the child?

It should be noted that while a physical move impacts a child's sense of stability and permanence, an out-of-state relocation is not per se such a substantial change of circumstances as to make a custodial parent's continued custody unreasonable and modification of such custody in the child's best interests. Most courts consider the following factors with respect to a proposed relocation:

• The prospective advantages of the move to improve the quality of life
• The motives of the custodial parent
• The child's desires as to the move
• The child's attachment to relatives and the community
• The noncustodial parent's motives in resisting removal
• The likelihood of the custodial parent's complying with substitute visitation orders
• The realistic opportunity for sufficient visitation to preserve the noncustodial parent's relationship
• Any restrictions in the original order that governs custody of the child

In addition to the above, courts in some states consider the following factors or circumstances:

• The impact on the non-custodial parent's visitation rights, such as the costs of travel and convenience
• The custodial parent's motivation for relocation, such as a higher paying job or a desire to deny the non-custodial parent's access to the child
• Consent of the child

Again, the factors that the courts consider, and the weight given to those factors, varies from state to state, and so it is critical that you understand the laws of your state before filing or opposing a petition to modify custody.

Joint Custody

Do the parents have joint legal and physical custody of the child, and are they both meaningfully involved in the child's care? If so, it is possible that any presumption in favor of removal will be inapplicable simply because the presumption would work to abrogate the joint custody agreement.

In some states, such as Indiana, a court can order the return of the child to the jurisdiction when the parents have joint custody and one parent relocated with the child, even when the parties custody order did not contain any travel restrictions. Additionally, in New Mexico, for example, once the parent having physical custody proposes a move to another state, no presumption exists either for or against the relocation and neither parent has the burden of showing that relocation will be in or contrary to the child's best interests.

These are just some the issues that arise when parents share custody and one parent wants to move away with the child. Whether you are filing or opposing the petition, you need to consider the impact that a joint custody agreement will have on the success of the petition.

Predispositions of the Judge

As odd as it might sound for a legal proceeding, which is stereotypically austere and preeminently impartial, parties making and opposing modification petitions might have to overcome a judge's individual, personal beliefs that a proposed relocation is inherently bad or that a current custodial relationship generally should not be altered. Consider the following strategies to help prepare for such a contingency.

Custodial Parent

How do you counter a judge who feels that any move is traumatic and therefore not in the child's best interest? You need to present convincing evidence showing valid reasons for moving out of the jurisdiction, such as:

• The custodial parent has remarried and the new spouse is taking a transfer or a new job, and
• The custodial parent has the opportunity for a new, higher-paying job

Be certain to stress the advantages of the move in terms of the quality of life for the child. It is also critical to emphasize that the relocation will not prevent visitation and continuing contact with the non-custodial spouse.

Other evidence that should be brought to judge's attention includes:

• Showing that the child would enjoy an increased standard of living because of the move, and
• Showing that adequate arrangements for daycare or for education have been made in the new state

Also consider using expert testimony from a psychologist, or other health professional who specializes in child development, as to the general adaptability of children to new environments.

Non-Custodial Parent

A non-custodial parent who is opposed to custodial parent's proposed relocation can have a substantial problem when facing a judge who feels that any child can adapt to a move. In such circumstances, you need to present concrete facts establishing why the move will not be in the child's best interests. Unsupported allegations or speculations about harm to the child will not carry much weight.

Other evidence that should be presented to the judge includes:

• Showing that visitations with the noncustodial parent will be impaired
• Showing that the custodial parent's reason for the move is questionable
• Showing that the child's relationship with extended families will be disrupted, and
• If the proposed move is to a foreign country, a showing that the impact of different cultural environments, as well as near total deprivation of access to the non-custodial parent

Again, an expert's affidavit, or some evidence that shows how the proposed move may adversely affect the child, can be very useful as support for the non-custodial parent's opposition to the relocation.

What happens if the custodial parent wins? In the event that the non-custodial parent is unsuccessful and the custodial parent is permitted to relocate with the child, another modification action can be initiated and custody can be transferred to the non-custodial parent if it is shown that the move was in fact detrimental to the child's development.

Related Resources on Lawyers.com^sm

- Best Interests of the Child
- Types of Joint Custody Arrangements
- Regaining or Changing Custody
- Child Custody articles and information
- Find a Child Custody attorney near you
- Visit our Child Custody Message Board for more help

Related Web Links

- State Specific Domestic Relations and Family Codes Websites