Child custody and visitation arrangements seldom stay fixed after the initial judgment is entered. The likelihood that the parents will remain in the same community as when the original custody and visitation judgment was entered lessens as employment, housing, and future relationships generate reasons to relocate. The reasons for residing in the initial location may have been based upon the employment of one parent, such that the other parent relocates post-judgment to be closer to that parent’s worksite. Perhaps the former joint residence is located too far from (or too close to) the family of one or the other parent. The residence that was ideal on two incomes may no longer be affordable or there may be a new soon-to-be-step-parent in the picture.
While the court can not dictate where the adults reside, any change in the residence of the children is normally going to be subject to a potential court review as to the best interests of the children. The availability and extent of any court review will be determined by the applicable state laws and terms of the prior court orders. The remedies the court may fashion can range from modification of visitation in light of increased visitation travel to a change of custody. When negotiating a custody or visitation arrangement, or arguing for specific terms before the court, it is important to anticipate and address the possible changes in parental residence.
Not all circumstances warrant making the relocation issue a priority in the custody judgment. If both parents have extensive family or other ties to the community, a move may be unlikely. The employment history of the parent will also indicate if mobility is a possibility. If the children are in high school and actively engaged in academic and social pursuits, the less likely a parent (or a judge) is going to find a relocation that takes the children out of their high school is in the best interest of the children.
Relocation within the immediate area, or even within the state in which the custody judgment is entered, may be presumed appropriate on the presumption that a parent will not relocate to the detriment of their children. The burden may then shift to the objecting parent to demonstrate that the relocation is not in the best interests of the children. Relocation out of the state in which the custody judgment was entered may require prior court approval under the statutes or court rulings of the state involved. In such cases, the burden is on the moving parent to demonstrate that the relocation is in the best interests of the children. The differentiation between relocations within and outside the state is due as much to the state not wanting to relinquish jurisdiction over the children as much as a concern that out-of-state moves usually have a more dramatic effect upon the children.
Challenging a relocation can be a lengthy and expensive process. The specific issues may warrant expert testimony on the schools and community of the new location, investigation into the employment or personal relationship issues claimed as a basis for the move, home visits to evaluate the proposed living arrangements, or psychological evaluations of the parents and children to estimate the impact of the proposed move on the children and the parent-child relationships. These investigations and evaluations can take many months at substantial cost.
The ramifications of a relocation can range from travel inconvenience for the visitation exchanges, modification of visitation schedules, social and educational acclimation issues for the children, to a change of jurisdiction to another state for future proceedings. As the relocation can have significant impact, if the potential for relocation exists, efforts should be pursued to address possible future relocations in the custody judgment.
Provisions in a settlement that state the current intentions of the parents to remain in the community or that the current schools or school systems of the children are to be maintained will set a basis to challenge any future proposed relocation. Less direct restrictions may also be effective, such as requiring the moving parent to provide all transportation for visitation or that travel time not affect the other parent’s visitation schedule or time.
In addition to such upfront efforts to limit relocation, maintaining detailed records of your ongoing involvement in your child’s life, of your child’s ties to the community, and the involvement of extended family with your child should be maintained to negate assertions at the time of the proposed relocation that the relocation will have minimal impact on your relationship with your child or upon your child’s life. A paper calendar and diary, or a computer program such as the DadsDivorce Custody Calendar, in which you maintain contemporaneous records may be used to support your testimony at a future hearing as to the impact of a move upon your child’s daily life.
Of course, the final consideration on relocation is the best interests of your children. Relocation may, in fact, be in the best interests of the children in some circumstances. If relocation is warranted, negotiation of extended visitations, telephone or video chat schedules, travel expenses, and limitations on further relocations should be considered in an agreement to allow the relocation.
Richard Coffee is a Senior Attorney in the Belleville Illinois office of Cordell & Cordell.
Mr. Coffee is an experienced divorce attorney whose practice is devoted to domestic litigation. He is licensed in the State of Illinois and is admitted to practice law in the U.S. District Courts for Northern, Central and Southern Illinois.
Mr. Coffee has extensive domestic litigation trial experience representing clients in courts throughout Illinois on all aspects of domestic litigation, including the representation of clients who are current or retired military personnel with issues under the Soldiers and Sailors Civil Relief Act and the Uniformed Services Former Spouses’ Protection Act, clients involved in state court jurisdictional disputes due to the relocation of one or both parties from or to Illinois, and clients with government or private pension benefit valuation and division issues. Read more…