By Nancy Shannon
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
Where 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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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.