Today’s mobile society means that more divorced parents are relocating for better jobs or a better life — and they want to take the kids with them. Divorced parents who want to move out of state — or even 100 miles away within the same state — should be prepared for the court that’s overseeing the terms of the divorce to look at a number of elements before allowing the move.
The most important factor is the type of custody arrangement, says Nadine Roddy, senior research attorney at the Charlottesville, Va.-based National Legal Research Group.
"If it was a traditional arrangement and one parent has sole custody and the other has visitation rights, it’s much easier for the custodial parent to relocate out of state than if there’s joint custody, where parents share physical custody."
But joint custody is pretty much the norm.
"The model of mom getting sole custody and dad appearing on the Fourth of July has pretty much been abandoned," says Roddy. "Dads are more involved."
State laws vary
The next factor is whether the state has a statute that specifically addresses relocation. Roddy says Nevada bars the custodial parent from permanently removing the child from the state without court permission. On the other hand, some states say the custodial parent has the absolute right to move and the burden is on the other parent to file a restraining order.
It’s a battle that’s being fought in family courts across the country.
Peter Herard of Palm Springs, Fla., says his ex-wife wanted to take their two children, ages 9 and 5, and move to Georgia to be closer to her family.
"I didn’t think it was a good idea that they move. She called with different setups — you can have them all summer, etc.," says Herard. "It might have worked out to be more time with them but it wouldn’t have been consistent. I’d go without seeing them for nine months and then see them for three months — it’s like being with a stranger."
The judge apparently didn’t think it was a good idea either. Herard won his court case and his ex-wife and children remain in Florida.
Move has to improve quality of life
Relocating to be nearer to family is a reason courts will often accept, says Roddy, but the custodial parent needs to show the move will result in an improved financial situation or that the extended family could provide a more stable family life.
"Needing a change isn’t good enough," according to Roddy. "It’s also helpful for the parent who wants to relocate to have as much concrete evidence as possible as to what the child’s life will be like — schools, advantages the new area may offer — the more concrete the plans are, the better."
Relocating for a better job or to further training or education also are reasons that courts look at favorably, but those reasons will be discounted if the court thinks the custodial parent is vindictive.
"If it doesn’t pass the ‘smell test’ — if they really sense the primary objective is to deprive the other parent, they won’t grant the relocation no matter how good it looks on paper," Roddy stresses.
The court may sense the relocation is vindictive if there’s a history of litigation between the two parties — perhaps there have been hassles over visitation or child support. In that case, the custodial parent will have to overcome any damage to his or her credibility and prove to the judge that the motive is pure.
Even if there is no history of "he said, she said" regarding custody, Roddy says the custodial parent should be prepared to make some generous concessions regarding visitation.
"How willing is the parent to offer extended blocks of visitation time to the parent staying behind? A big chunk of time in the summer and over holidays is viewed as being willing to foster the child’s relationship with the other parent."
Roddy suggests that parents may want to consider relocation clauses in the initial divorce agreement. But, she cautions, some courts don’t feel bound by that agreement. It’s the court’s prerogative, she says, to assess the child’s best interests and it will freely ignore the agreement if necessary.