Legal issues involving child custody and visitation tend to be particularly emotional, contentious, and complicated. Determining child custody once is difficult enough for most divorcing couples, but when one parent wants to relocate with the child after the original custody order is established, the custody determination process might need to be revisited or even restarted completely. While a family law judge cannot prevent a parent with joint or sole custody from moving, the existing child custody arrangement usually dictates how many miles away they can move with their child(ren) without additional court involvement. Seeking to relocate further away requires modifying custody and visitation orders to reflect the new circumstances.
Depending on the nature of the existing custody agreement, a parent must take specific steps before they can relocate a child without violating the custody order. The non-moving parent does have the right to object to this move and can fight for primary custody if they believe the move would be detrimental to the child’s well-being. Whether you are the moving or non-moving parent, move-away cases can be complex, and many factors are involved in resolving these issues. The best way to protect your rights and interests is to secure legal representation.
Learn more about parental relocation below, then contact Paula D. Kleinman to ensure you achieve the best results in your case.
Most child custody orders feature geographic restrictions for parental location. These stipulations often require both parents to consent before moving the child beyond this range. Every custody agreement is different. A typical order, for example, might state that the parent with primary custody (the “custodial parent”) moving fifty or more miles from the county where the child currently resides is far enough to disrupt the existing custody order and take the case back to court to approve the relocation. The requirements for relocating differ based on whether the parent who intends to move has sole or primary custody of the child or shares custody with the other parent.
If a parent with sole or primary custody wants to move to a location within the range specified in the original custody order, they typically do not require permission from either the court or the other parent to do so. However, they must file a written notice of their plan to move and send a copy of the notice at least 45 days before the proposed moving date. This allows the parents to create a new visitation plan and also allows the non-moving parent an opportunity to file an objection to the move in which they might ask a judge to modify custody.
If the custodial parent wants to move outside of this range, both parents must cooperate to update the custody agreement and receive approval from a judge. If they cannot reach such an arrangement, or the non-moving parent contests the relocation, their case will move to court, where a judge will make a final custody determination based on the child’s best interests.
When parents share joint custody, neither parent has a “presumptive right” to move the child without approval from the other parent or the court. In this case, the moving parent cannot simply file a notice but must obtain permission from the other parent to relocate the child (or obtain permission from a judge if the other parent contests the move). This involves filing a formal “move-away” order with the court, then appearing at a hearing where a judge will determine if changing the existing custody order is in the child’s best interests.
While neither a judge nor a former spouse can prevent someone from moving, they can prohibit a custodial parent from relocating with their child if they believe that this move would be detrimental to the child. In this case, the burden of proof rests on the non-moving parent to provide clear, persuasive evidence that keeping the child in their current location is in their best interests. A judge will usually only change a custody order when a significant change in circumstances makes it necessary for the child’s well-being.
The judge will review the following factors before making a custody change:
A move-away case can lead to a variety of outcomes, many of which require changes to an existing custody order. If the judge believes the move would be detrimental to the child, but the custodial parent still chooses to move ahead with relocation, for example, a completely different custody order would be required to accommodate that situation.
A move-away order does not involve modifying an existing custody order but requires creating a new one. Because this essentially starts custody negotiations from the beginning, the judge has the discretion to redistribute parental rights however they see fit. The old and new orders may be very similar or may include major, fundamental changes such as granting the non-moving parent primary custody.
All parents want the best for their children, but opinions about what this entails often differ. The parent who wants to move may be seeking a better job, a stronger support system, or a lower cost of living. They may view the relocation as a positive opportunity for their child. At the same time, the other parent may be uncomfortable with the idea of uprooting the child from their community and concerned that such a move would make it more difficult for them to spend time together.
Whether you are a parent looking to relocate or are worried about your ex moving away with your child, honest communication with your co-parent is usually the best first step towards a resolution. A move can seem scary at first but working together offers the best chance of reaching mutual understanding and a positive outcome for your child(ren). Paula D. Kleinman has more than two decades of experience representing clients on both sides of move-away cases and can help you whether you’re beginning negotiations with your ex or ready to take your case into a courtroom. Contact us today to find a solution that works for your family.
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