Move-away and Child Custody

When one parent wants to move away with the child(ren), this is nearly always against the wishes of the other parent.  Such situations are very difficult to mediate.  It usually seems so stark that there will be a big “winner” and a big “loser.”  There’s usually not much chance for compromise.  Either the move-away will happen or it won’t.

I’ve been through this situation myself.  When my children were quite young, their mother wanted to move back to her home country about 3,000 miles away.  It was very difficult, but fortunately we were able to agree upon a long-term co-parenting plan.  For the most part we followed it, and in the end everything worked out well for all concerned.  Throughout it all, my children remained very close to both their mother and me.

Sometimes these cases end up in court for a judge to decide.  “Move-away cases are among the most difficult and heart-wrenching decisions for a family law judicial officer” (Judges Benchguide 200).

Mediating a Move-Away

Here are some ideas when parents are beginning to address a possible move-away:

• Have the parent who wants to move away clearly explain their reasons;
• Have both parents express what they see are the pros and cons;
• Let them both have and express their feelings;

Then, if the move-away parent still wants to move away:

• Try to help the staying parent see that it could still be possible for them to be an involved and successful parent
• Discuss what opportunities there could be for the staying parent to have time with the child(ren) and how these might be maximized
• Discuss how the staying parent could continue to be in close communication with the child(ren), through methods such as video chats.
• Discuss the implications of the move-away on child support and the travel costs that would be incurred.

Sometimes, an agreement can be reached.  This is nearly always preferable to litigating the matter in court.

Of course, a judge can’t prevent a parent from moving away.  However, a judge can deny a parent from having custody of the children if they do move away.

Move-Away Law

The parent who objects to the move-away would need to file a motion with the court arguing their position.  The parent who wants to move way will then file a response.  Assuming no agreement is reached beforehand, a hearing (which may be lengthy) will take place in front of the judge.

What does the law say to guide a judge in making a move-away decision?  It’s rather complex.  And it often doesn’t allow for confident prediction of the judge’s ruling.  Following is a very brief summary of the law as it currently stands.

There are different legal guidelines for the judge’s analysis and decision-making, depending on whether there has been a prior “permanent” court order for custody.  A permanent order could have arisen due to a prior hearing or trial in which the judge made a “final” determination of custody.  It could also come from a written agreement submitted to the court by the couple in which they explicitly stated that the custody arrangement in their agreement was meant to be “final.”

No Prior Permanent Custody Order

When there has been no prior “permanent” order, the judge is to consider the following:

• Is the intended move-away in “bad faith,” e.g. intended deprive the other parent of time with the child(ren)? If so, the judge will normally deny the move-away.
• All relevant circumstances bearing on the “best interests” of the child(ren).
• The nature and length of the custodial relationship as it has existed just before the move. When the moving parent has maintained custody for a significant period, the nonmoving parent will bear the burden of persuading the court that not moving is in the child’s best interest.
• If the judge is inclined to allow the move-away, the judge may attach conditions to the move which the parents must meet. These conditions will likely be geared towards ensuring frequent and continuing contact with both parents, to the extent this can be accomplished.  If the conditions can’t be met, the judge may deny the move-away.

What are the main factors that go into an evaluation of the best interests of the child?

• their health and education needs;
• the distance of the move;
• the reasons for the move;
• the child’s interest in stability and continuity in the current custodial arrangement;
• the child’s age;
• the nature of their existing contact and relationship with each parent;
• the relationship between the parents;
• any history of abuse;
• the child’s wishes, if the child is mature enough for such an inquiry to be appropriate;
• the child’s circle of friends;
• their particular academic or sports activities within a school or community;
• their community ties.

Prior Permanent Custody Order

When an existing “permanent” custody order grants one parent sole physical custody, either:

• The noncustodial parent must show that the move is in bad faith or would cause detriment to the child, requiring a reevaluation of custody. If this showing of detriment is made, the court must determine whether a change in custody is in the child’s best interest or
• The staying parent persuades the court that despite the current custody order, the parents have in reality shared physical custody. If so, the court must newly consider custody based on the child’s best interest.

When the existing order grants joint physical custody, either:

• The court must newly consider custody based on the best interests of the child or
• One parent must persuade the court that the other parent has not adequately shared in his or her parenting responsibilities, thereby establishing de facto sole physical custody. If this is done, the de facto custodial parent is entitled to a presumption that it’s okay for them to change the child’s residence. To prevail over this presumption, the other parent would need to show that the move is in bad faith or would cause detriment to the child requiring a reevaluation of custody. If the court finds detriment, the court must determine whether a change in custody is in the child’s best interest.

The information above concerning the law comes from Judges Benchguide 200: “Custody and Visitation.”