Family Law

Relocating with Children after Divorce

People move or relocate all the time and for all sorts of reasons. A new job may take you to a new city, state or even a new country. Maybe you want a change of scenery, or perhaps to move back to the childhood neighborhood you left years ago. Whatever the reason, moves aren't a problem for many people, other than the actual hassle of the physical move.

For divorced or separated parents, things are sometimes a bit more complicated. Your move may have a big impact on your child custody or visitation rights. In fact, a court may even stop you from moving at all.

Travel Restrictions

You may not realize it, but the fate of your move may already be sealed, long before you pack the first box or even mention the move to your ex-spouse.

Check the Paperwork First

Check your divorce or child custody decree for any travel restriction 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

In some states, the law sets geographical travel restrictions on the parents' ability to move or relocate with the child. 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, which kicks off a court battle.

In other states, the custodial parent must file a petition with the court asking for the court's permission to relocate.

In states where there are no travel restrictions of any sort, the courts usually allow the move.

Consequences for Both Parents

As the custodial parent, you need to be aware of travel restrictions. You must get court approval before you relocate with the child if there's a restriction, whether it's in your divorce papers or state laws. You risk being held in contempt of court - and that means jail time, a fine or both - if you move the child without court approval.

As the noncustodial parent, you may lose the chance to have a long-term relationship with your child, so you need to consider filing:

  • An objection with the court to block the move if there's a travel restriction in your divorce papers or state laws, and
  • A petition to modify child custody on the ground that a change in custody is the only way you can keep a relationship with your child

How the Court Decides

It's not unusual for the courts to get involved in custody disputes when the custodial parent wants to move with the child. In some states, the court presumes the custodial parent's move is allowed, unless the noncustodial parent comes up with strong evidence that the child would be more harmed than helped by the move.

In other states, the custodial parent has to prove the relocation is in the best interest of the child.

Some factors courts look to in deciding whether the custodial parent can move with the child include:

  • 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 not moving, 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
  • The child's preference, taking into consideration the age and maturity of the child

It's important to remember that a court has the power to block or stop the relocation if it believes the relocation would be harmful to the child.

Options for the Noncustodial Parent

Once the court decides relocation is in the best interest of the child, the noncustodial parent may face the decision of seeing the children only during visitation periods, or moving to the same location for greater access.

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 get longer visitation periods during the summer and holidays, for instance, in exchange for an agreement not to fight the relocation.

Help with Negotiations

A formal mediation may help you reach an agreement without going to court. A mediator is an impartial third party trained to help people resolve issues like child custody.

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 back and forth? The mediator will help you identify logistical details like this.

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 for your child. Work together to make the right decision for both parents and your child.

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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