One of the more common post-divorce issues parents must face is the relocation of one of the parties. Divorce strains the relationship between a parent and child, especially for the non-residential parent. When the other parent relocates with the child this strain is exaggerated. The greater the distance between the parties, the greater the strain on the relationship between the non-residential parent and the child. Further, once a residential parent legally relocates it is very difficult to get a court to reverse the arrangement and bring the child back to the area where the non-residential parent lives. For these reasons it is important to quickly, and effectively, address the issue of relocation as soon as it becomes a possibility. A recent article by attorney Maury D. Beaulier, which is posted on this site and is also available at www.divorceprofessionals.com, discusses the factual issues which are relevant to a relocation case. The purpose of this article is to discuss the nuts and bolts of the process in a relocation case. It is very important to keep in mind each case is unique. Additionally, laws vary widely from state to state. I will discuss Kansas law as it relates to relocation cases. No matter where you live, however, it is important to seek legal counsel as soon as you become aware of a possible relocation.
The Kansas law regarding relocation of a child is found at Kansas Statutes Annotated section 60-1620.
The law requires a party who plans to either change the residence of the child or remove the child from the state for more than ninety days to provide the other parent written notice at least thirty days in advance of the relocation or removal. The notice shall be sent by restricted mail, return receipt requested, to the last known address of the other parent. The statute goes on to say failure to provide the notice is indirect civil contempt which can result in the assessment of attorney’s fees against the party. Failure to provide notice may also be grounds for modifying custody, residency, child support or parenting time. Finally, the statue states the notice is not required if the other parent has been convicted of certain crimes where the child was the victim.
The Kansas statue spells out in detail the type of mail required to be used for the notice. No mention is made, however, of the options available to the parent who receives the notice. In fact, the statute itself seems to imply that once notice is given the move is permitted. There is no process for filing an objection and no direction of who to notify of such an objection. Three questions arise from the statue. First, what information does the moving parent have to provide regarding the relocation? Second, does the other parent have any say in the relocation process? Third, if so, how does the other parent raise a concern or objection to the relocation? The statute does not require any specific information regarding the relocation other than the intention to change the residence or remove the child from the state. A simple statement of “I intend to move the child’s residence in five weeks” appears to be sufficient to satisfy the statute. Keep in mind, however, this is true only of the Kansas statute. The rule in other states will differ.
If there is no additional information provided how can the other parent determine whether or not the proposed relocation is a good idea? The answer to this question is also the answer to the second question raised by the statute. Most divorced or non-married parents have joint legal custody of their children. Joint legal custody means both parents are entitled to participate in making “major life decisions” for a child. Parents are entitled to know where their children live and attend school, and how to contact the children. If the information is not provided in the relocation notice the other parent is entitled to request it from the parent proposing to move. Joint legal custody gives the non-moving parent a voice in the child’s relocation. If you object to the proposed relocation the other parent cannot ignore your opinion and relocate the child anyway. Neither parent’s opinion is more important than the other. If the parties cannot reach an agreement a third party, typically the trial judge, will have to make the decision. A word of caution is appropriate here.
The Kansas relocation statute does not require approval of the other parent or the court. If you fail to object and seek the court’s assistance the other parent may legally relocate the child. All Kansas requires is giving the notice thirty days in advance. Since your approval is not required you must not only notify the moving party of your objection you must seek help from the court. You have the right to participate in making this major life decision but if you fail to bring the issue to the court you may waive your right. Immediate response is extremely important in this situation if you wish to prevent the child from being relocated. This brings the discussion to the third question, how does the non-moving parent properly raise an objection? This response will also vary from state to state. In Kansas the appropriate response is to file a Motion in the original domestic case seeking to prevent the relocation until such time as the court can make a decision. The temporary order issued by the court will not be a final determination of the issue; instead, the order will hold the status quo until the court can hear the evidence and make a final determination. Once the order is issued by the court you must arrange to have them served on the other parent. The other parent will then have the opportunity to request a hearing from the court on the relocation issue. If they do not request a hearing the temporary order will remain in effect. The relocation may then only proceed if the court finds, after hearing all of the evidence, the relocation is in the child’s best interest. There are a few final things to remember in responding to a relocation case.
First, the only issue is your child’s best interest. The court will not prohibit the other parent from relocating; you do not have any control over their lives. The options before the court will be for your child to move with the other party or to stay with you. The court will focus on what is best for your child. Your response must therefore focus on why it is better for the child to remain in the current locale, with you, rather than move with the other party. Your argument should be based on why the current situation is better than the alternative. It is not enough to simply attack the other party’s motives. You must show remaining with you is better for your child. If you cannot convince the court it is in your child’s best interest to stay with you, you probably cannot prevent the relocation.
Second, the Kansas statute requires notice be provided to you at your last known address. If you fail to provide the opposing party your current address you may never receive the notice. The statute does not require you actually get the notice, it only requires the notice be mailed. It is very important, therefore, for you to make sure the other parent knows where you live at all times. Simply telling them you are moving to a new neighborhood or area is not sufficient you must make sure to provide your current address.
Third, the Kansas statute specifically requires notice to be provided restricted mail, return receipt requested. This is the most specific part of the statute. You might believe if you receive notice any other way you have an ace in the hole in trying to convince the judge to rule in your favor. Most of the time courts are reluctant to make decisions as important as the custody of your child based on these types of technicalities. If you receive notice over the telephone or by e-mail you should presume the court will accept the notice as sufficient and respond immediately. Failure to respond may prejudice your ability to fight the relocation.
Fourth, the statue requires notice only once the decision to relocate the child has been made. Your defenses, however, are not limited in this way. If the other parent mentions to you they might be thinking about moving in the future, you can seek a court order preventing the relocation until such time as the court can hear evidence on the matter. The order will not change the current parenting arrangement but it will prevent the relocation until the court can make a decision. Fifth, there has been a great deal of recent literature suggesting it is best for very young children to have frequent, but shorter, contact with each parent rather than extended time with one or the other. This information is often used to oppose shared residential custody because it is believed the child will suffer if it goes for a week without seeing one parent or the other. As the child ages it becomes more appropriate to use less frequent visits which last for a longer time. If the child is very young this same literature may be a powerful tool to oppose the relocation. The concerns about a child not seeing a parent for a period of several days are greatly magnified if the visits only occur every few months due to the distance between the parties.
Finally, it is important to keep in mind you are not attempting to deny the other party contact with their child. You are simply protecting your own right to access to the child. The party proposing relocation, when faced with an objection, will often complain the other party is trying to keep them from the child. This manipulation can induce feelings of guilt (“I do not want the children to be separated from their mother, so I guess I will allow her to take them with her”). In fact, the party who is proposing relocation is the one who is attempting to separate the child from its parent. When you object to the relocation you are only asking to remain a vital and important part of your child’s life. If the other party elects to move and leave their child behind, they are making that choice. Just because the move is best for the parent does not mean it is best for the child and you should not feel guilty for fighting to remain involved in your child’s life. Ken McRae is a