In an increasingly mobile society, it’s becoming more common for parents to want to relocate themselves and their children after a divorce. No matter how the issue is decided, someone loses: either the custodial parent is prevented from moving to take advantage of job opportunities or family support networks, or the noncustodial parent only sees the kids on holidays and during the summers.

Most states now have laws that spell out exactly how a court will decide whether or not the custodial parent can legally move out of the local area with the children after a divorce.

In some states, the custodial parent must give the noncustodial parent official written notice of the intention to move, and it’s 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.

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, trying to come to some compromise that will allow the custodial parent to move while still maximizing the noncustodial parent’s time with the children.

If time allows, a formal mediation may help clarify the issues and reach an agreement without having to take the matter to court. A mediator is an impartial third party trained to help people come to an agreement on difficult issues.

In coming to a negotiated agreement, it’s important to consider logistics such as when the childrens’ school schedule allows visits outside the local area, and who will pay for and arrange transportation back and forth.

How the Court Decides

In some states, the court presumes the custodial parent’s move will be allowed, unless the noncustodial parent can present compelling evidence that the children will be harmed more than helped by the move.

In other states, the custodial parent has the burden of proving that the relocation is in the "best interest" of the children.

Some of the factors courts look to in deciding whether the custodial parent should be permitted to relocate with the children 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) in the child’s life
  • Any previous agreements between the parties
  • Whether disrupting the contact between the child and the person with whom the child resides a majority of the time would be more detrimental to the child than disrupting contact between the child and the person objecting to the relocation
  • The intent of each person for seeking or opposing the relocation, and the good faith of each of the parties in requesting or opposing the relocation
  • Whether there’s an established pattern of conduct of the parent seeking the relocation to promote or thwart the relationship of the child and the non-relocating parent
  • The age, developmental stage and needs of the child
  • The likely impact the relocation or its prevention will have on the child’s physical, educational and emotional development, taking into consideration any special needs of the child
  • The quality of life, resources and opportunities available to the child and to the relocating party in the current and proposed geographic locations
  • The feasibility of alternative arrangements to foster and continue the child’s relationship with and access to the other parent, considering finances and practical concerns
  • The alternatives to relocation and whether it’s feasible and desirable for the other party to relocate at the same time
  • The financial impact and logistics of the relocation or its prevention
  • The child’s preference, taking into consideration the age and maturity of the child

The court may appoint what’s called a "guardian ad litem" to thoroughly investigate and make a recommendation to the court. A guardian ad litem will want free access to your child and extended family and other support network connections. It’s important to be honest and cooperative with a guardian ad litem.

If the court decides relocation is in the best interest of the children, the noncustodial parent is faced with either seeing the children only at holidays and summer visits, or relocating to the same location as the custodial parent and children.