Family Law

Relocating with Children after Divorce

By Lina Guillen, Attorney
For divorced or separated parents, moving can have a big impact on your child custody or visitation rights.

If you're a divorced or separated parent considering a move to a new town, state, or country, you'll need to consider your child's best interests and the other parent's custodial rights.

Check the Paperwork First

Check your divorce or child custody decree for any restrictions on either parent's ability to move the child beyond a specified geographical limit. Travel restrictions are common, and they're usually worked out between the parents during the divorce.

Check the Laws in Your State

Some states set geographical travel restrictions on divorced parents' ability to move or relocate with their children. The laws vary from state to state, but usually the custodial parent must give the noncustodial parent formal written notice of the intention to move. It's then up to the noncustodial parent to file an objection with the court. If the court receives an objection, a judge will schedule a "move away" trial to determine whether relocating the children is in their best interests.

In other states, the custodial parent must file a petition (written request) asking for the court's permission to relocate. The court will likely set a hearing to determine whether the move will best serve the child's interests.

Consequences for Both Parents

As the custodial parent, you must get court approval before you relocate with your child if there's any sort of travel restriction, whether it's in your custody agreement, your divorce judgment, or state laws. If you relocate your child without court permission, you risk being held in contempt of court, which can result in fines, jail time, or both.

For a noncustodial parent, a relocation may interfere with your ability to maintain a close relationship with your child. If you're opposed to the move, you should consider filing:

  • an objection with the court to block the move, and/or
  • a petition to modify child custody—so that you become the custodial parent—on the grounds that it's in your child's best interest to stay in the current community of school, friends, and family and because you can provide a stable, suitable home environment for your child.

How the Court Decides

Move-away cases often end up in court. In some states, judges must presume the custodial parent's move is allowed, unless the noncustodial parent has strong evidence that the child would be more harmed than helped by the move. In other states, the custodial parent has to prove relocation is in the best interest of the child.

When courts decide move away cases, they consider numerous factors, including:

  • the relative strength, nature, quality, extent of involvement, and stability of the child's relationship with each parent, siblings, and other significant people (such as grandparents)
  • any prior agreements between the parents
  • the intent and good faith of each person in seeking or opposing the move
  • whether there's a pattern of conduct by the relocating parent that's meant to improve or harm the non-relocating parent's relationship with the child
  • the child's age, maturity, and needs
  • how much moving—or staying—will impact the child's physical, educational, and emotional development and relationships with both parents
  • the quality of life, resources, and opportunities available to the child and the relocating parent in the current and new locations
  • any alternative arrangements that would help the child maintain a relationship with the other parent
  • whether it's possible and desirable for the other parent to relocate at the same time
  • the financial impact and logistics of allowing or stopping the relocation, and
  • the child's preference, taking into consideration the child's age and maturity.

It's important to remember that a court has the power to block or stop the relocation if it believes the move would negatively affect the child. If the court decides relocation is in the best interest of the child, the noncustodial parent will likely end up with more limited visitation periods and may want to consider moving to the same location for more parenting time.

Parents: Negotiate, Negotiate, Negotiate

Whether you're the custodial or noncustodial parent, you're more likely to reach an outcome you can live with by negotiating with your ex-spouse. Try to reach a compromise that allows the custodial parent to move while still maximizing the other parent's time with the children. Perhaps the noncustodial parent could receive longer visitation periods during the summer and holidays, for instance, in exchange for an agreement not to fight the relocation.

Child custody mediation may help you reach an agreement without going to court. A mediator is an impartial third party trained to help people resolve difficult issues. In negotiating an agreement, it's important to consider logistics. For example, you need to think about when your child's school schedule would allow visits outside the local area, and who will pay for and arrange transportation for the children. The mediator will help you identify and resolve these types of details.

Relocating is a big decision for anyone. As parents, you need to understand the impact it may have on your child. Often, a divorce or separation is an emotionally traumatic event for a child: The prospect of moving away from one parent may be even more stressful. Work together to make the right decision for everyone involved.

Relocation cases are highly complex. If you're on either side of a move-away case, you should speak to an experienced family law attorney in your area for advice.

Questions for Your Attorney

  • How do courts in my area view moving due to a job promotion or higher-paying job?
  • How do I stop my ex-spouse from moving to another country with my child?
  • How does remarriage affect custody and relocation issues? What if I am just moving in with that other person?

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