Custody Relocation Case Study: A Judge’s Ruling on Moving Out Of State

child custody relocationBy Nancy Shannon

Cordell & Cordell Divorce Lawyer

A child custody relocation case, where one parent wishes to move out of state with the child, typically involves a trial where the left-behind parent can make a case for why the other parent should not be allowed to relocate with the child.

In general, the parent looking to relocate must give notice to all other individuals entitled to exercise visitation at least 60-90 days before – depending on the jurisdiction – so that the non-relocating party can have an opportunity to object.

If a parent would like to fight the relocation, he needs to file a formal objection to the relocation notice and ask the court to determine that either the other parent does not have the right to relocate the children under the divorce decree and/or that such a move is not in the children’s best interest.

To understand how a judge determines the outcome of a custody relocation case, let’s review the case study that follows.


Custody Relocation Case Study

Jack and Jill got divorced two years ago, when their child, Bart, was seven. Jill got custody and for two years, Jack exercised all the parenting time with Bart that he could – every other weekend and one evening during the school week.

Jack and Jill both eventually started dating other people, and one day, Jill informed Jack that she wanted to move to another state where her fiancé lived and worked, and she wanted to take Bart with her.

Jack was shocked. How could he be a good parent to Bart when Bart lives 10 hours away? How could Jack attend parent-teacher conferences or help coach Bart’s soccer team? How could Bart proudly show him his schoolwork and put it on Jack’s refrigerator each week?

Jill let Jack know that, because she was the custodial parent, she could do whatever she wanted.  Then Jill talked to a divorce lawyer and found out that she couldn’t take Bart out of the state, on a permanent basis, without Jack’s agreement or the court’s permission. She wasn’t going to get Jack’s agreement, so she filed an action with the court asking for permission to move with her son to another state.

Jack decided that if Jill stayed in their state, he would want visitation to continue on like it had been. He also decided that if Jill were allowed to move to out of state then he would want visitation and child support modified, but he didn’t request a change in custody. Jack asked the court to dismiss Jill’s complaint, or, to modify visitation and child support.

Jack and Jill eventually got a trial date in early fall. Since Jill was a teacher, she quit her job in the hopes that she would have permission to move shortly after the school year started. She also applied for teaching jobs in her desired state and made arrangements to substitute teach wherever she lived until she could find a full-time job.

Jack and Jill both had divorce attorneys who presented all of their evidence at trial. This is how the judge came to his decision to deny Jill the ability to move out of state with Bart.


Child Custody Relocation Factors

custody move out of stateWhere I practice, a parent wishing to move with their child out of state has to pass a two-part test. Part One: show the court a legitimate reason to move. Part Two: show the court that the move is in the best interests of the child.


Part One Test: Show A Legitimate Reason To Move

There are several legitimate reasons that a person might want to leave the state with a minor child. A commonly seen legitimate reason is that the parent found a better paying job that wasn’t available to them in their state.

However, a parent who wants to leave so that they can live with their new spouse, who is employed and resides in another state, can also be a legitimate reason, at least according to case law in my state.

Since Jill’s reason to move passed Part One, the court now considers Part Two of the test – the best interests of the child standard

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Moving out of State


Part Two Test: Best Interests Of The Child

The second part of the test has several factors, and they all add up to what the court has titled the best interests of the child. The court will look at each factor and decide if the factor is in favor of mom, in favor of dad, or it is neutral.

In general, the three main factors the court will consider are

1.) Each parent’s motives for asking permission, or denying permission, to move;

2.) How the move might make the quality of life better for the child and the custodial parent; and

3.) What kind of impact the move, and the new visitation schedule, would have on the relationship between the noncustodial parent and the child.

Factor 1: Motives

When the court looks to each parent’s motives, they are looking for any evidence that one of the parents might be acting in bad faith, or simply trying to make life hard for the other parent or simply to interfere with the established parenting time.

In this case, the judge found that Jill wanted to move to live with her fiancé. He found that Jack didn’t want his parenting time with Bart compromised. These are both good reasons. Since there was no bad faith, this factor was neutral.

Factor 2: Quality of Life

When the judge weighs the quality of life, he must also look at several sub-factors:

a) The emotional, physical and developmental needs of the child,

b) The child’s opinion as to where he wants to live,

c) How much the moving parent’s income will be increased,

d) How much the child’s living conditions would be increased,

e) Any educational advantages,

f) The quality of the relationship between the child and the parents,

g) The strength of the child’s ties to the present community and extended family living there,

h) How likely it would be that the move would increase hostilities between the parents, and

i) The living conditions and employment opportunities of the relocating parent.

A. Needs of the Child

The judge first looked at whether the needs of the child would be met in another state.  Bart was active in sports and took piano lessons where he lived. Jill testified that those same types of opportunities would be available in their new state.

Jack brought in an expert at trial who testified that Bart had an adjustment disorder and the new things and experiences could cause him trouble. However, the expert also testified that children who have to move their place of residence do not usually experience long-term negative effects. The judge ruled that this factor was neutral.

B. Child’s Choice

There is no magic age in the state where I practice whereby a child can choose where he or she wants to live. The general rule of thumb is that the older and more mature a child is, the more the judge will likely take his or her opinion into consideration.

Bart was nine and the judge talked with Bart in the judge’s office. (Also, known as “in chambers.”) The judge did not report what Bart stated and did not give either parent any favor for this point.

C. Moving Parent’s Income Considerations

The judge next considered with Jill’s income would be enhanced. In anticipation of the move, Jill had quit her job.

At trial, she testified that she did not have a job in her desired state, but would be able to substitute teach. She also testified that if she moved to another state, that could expect to earn the same, or possibly $10,000 a year more, teaching full time.

The judge found that Jill did not show him that she had a reasonable expectation of improving her job opportunities if she moved to another state.

D. Child’s Living Conditions

The judge weighed whether Bart’s living conditions would be improved in another factor. Jill testified that they would be moving to a house that was substantially the same size as the one they were currently living in.

The judge found this factor to be neutral.

E. Education Advantages

In order for the judge to find that there are educational advantages in the proposed state of relocation, Jill had to show the court that Bart’s new school would be superior to his existing school. Bart was a gifted math student and had taken advanced learning sessions. Jill showed the court that these types of sessions would be available to him in their new state, as well.

The judge found that Jill failed to show that the school in the new state would be superior to what Bart was currently offered and that this factor did not weigh in her favor.

F. Relationship Between Child and Parents

Next the judge looked at the current relationship between Bart and his parents. The judge found this factor to be neutral, as both of them spent their available time with Bart when they could, and both regularly attended his school conferences and extracurricular activities.

G. Community and Family Ties

The judge also weighed Bart’s ties to the community and extended family in his current state.

Both Jack and Jill had family members in the area that Bart saw on a regular basis. Moving to another state would take Bart many hours away from these family members and reduce his time with them.

The judge found this factor weighed against removal.

H. How A Move Affects Parent’s Relationship

Both Jack and Jill testified that they had, for the most part, been able to communicate effectively for the past two years. The judge found this to be a neutral factor.

I. Living and Employment Conditions of Relocating Parent

The judge looked at the living a d employment conditions of Jill. He found that this factor was neutral, as her living conditions and job opportunities would be about the same in either state.


Factor 3: Impact on Relationship Between the Child and the Noncustodial Parent

The judge will look to the current visitation schedule and what the parenting time schedule might be if the child were to be allowed to move out of the state.

The judge will then consider whether this new schedule would allow the noncustodial parent to maintain the same type of relationship he currently has with the child.

The court will also consider the distance and expense of travel, as well as the custodial parent’s willingness to comply by the new visitation schedule.

Jill testified that she would be willing to pay all the travel costs. However, the judge found that Jack’s mid-week visitations would be reduced to phone calls and that it would take a lot of time and money for him to attend extracurricular activities.

The judge ruled that this factor weighed in favor of Jack.



When weighing all of the factors, the judge found that it was not in the best interests of Bart to move to another state, even though Jill had a legitimate reason for wanting to move there.

There are obviously many issues that a judge will consider when deciding whether a custodial parent can remove a child from the state on a permanent basis. Each removal case has its own unique set of details and no two are the same.

If you are facing a removal situation it is best to consult a men’s divorce attorney who handles divorce and child cases.

Child Custody Lawyers:

Contact Cordell & Cordell


Omaha Nebraska Divorce LawyerTo arrange an initial consultation to discuss divorce rights for men with a Cordell & Cordell attorney, including Omaha, Nebraska Divorce Lawyer Nancy Shannon, contact Cordell & Cordell.

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16 Comments on "Custody Relocation Case Study: A Judge’s Ruling on Moving Out Of State"

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1 month 28 days ago
My ex and I have been divorced for 5 years, he has been remarried for 3 years and has a son and step daughter with his current wife. I filed a motion to modify custody so that I could move to another state to be closer to family and also because I was offered a job with a $20,000 a year salary increase. My ex contested me taking our daughter from Maine to North Carolina. We went to trial and the judge ruled in my ex’s favor, stating that I had legitimate reasons for moving, however her father appeared more… Read more »
3 months 23 days ago

What are the effects of Latimar on this example?

4 months 4 days ago

What if your guys aren’t married does this apply to the same?

6 months 8 days ago
My ex and I divorced in Dec 2013. I have sole custody of both of our boys. The judge gave him the privilege of claiming them on his taxes and he spends zero of that money on them. Both of them are autistic. He only takes them every other weekend as stated in the divorce. The judge was completely unfair to me about everything but custody. He doesn’t take them during breaks, or help with school clothes, or even help me when I ask. He ignores me, he tells me I have to stop thinking he can stop his life… Read more »
3 months 3 days ago

wow! sounds an authentic situation like mine, except just one child. best wishes Kristine…stay strong don’t let him push you around & your children.

7 months 3 days ago

I recently lost my job and lost 90%of my income and with that I’m losing my house.,I recently had a job offer in another state and my wife has a child by her ex husband. So I was wondering what my position would be for improving our situation if we moved considering it would be bettering our financial situation?

Landcleair Galloway
10 months 6 days ago
I divorced my 1st husband in 2012. A short wjile after I moved out of state. The judge awarded my x custody and me parenting time. We have both remarried. I moved thinking the judge would see that I was trying to provide better living for our children. My home had been broken into 6 times im 3 moths twice in the day once while someome was home. I just felt they/we needed a better area to grow. Since my x has had 2 cps cases that I know of opened against him one for leaving our childern in car… Read more »
Tania Hunnicutt
10 months 21 days ago

I am recently separated from my hubby we have a 12 yr son who we both got custody rights of. Our separation isnt filed but My husband took our son from school last week an moved him 500+ miles away. I was never told first an I been the Primary Caregiver hubby primary financially. I want at Least Half time custody if not full. I live in Oregon an need advic on parental kidnapping, marital abandonment, an my rights as the mother I havnt even got to speak to our son in over a week.

1 year 1 month ago
My son had took care of my grandchildren over a year while my daughter in law went to school then work after degree. He did all in getting them cared for, him working, and getting his college degree over the Internet. He is at the finaling part of is divorce except , as told by son, deciding child support. The thing that went amissed to me was she commited adultery with final admitting months into divorce.. My son took video of her taking pictures or videos to her lover. He also caught lies she made on some kind of questionnaire… Read more »
1 year 2 months ago
ive just been served a letter to tell me that my ex wife is moving to New York and she’s taking my two sons with her to start a new life with a man she just recently met on an online dating site. She’s already ignored a court ordered custody agreement in South Dakota by not letting me have or contact my children on my scheduled visitation times and my half of their summer vacation. She took them out of South Dakota to New York when the kids were supposed to be with me, I had to have police help… Read more »
1 year 4 months ago

Love the approach and totally agree. Key ” best interest of children”. Kids care about two things…. Not a bigger house, not more material stuff…..they care about mom an dad. Then they turn 18 – They can then decide where they live and until then te o parents are better than one.