Are you a custodial parent? Do you know if you're able to move your child out of state after divorce? Even if you're pretty sure the answer is yes, it pays to check first. After all, getting this wrong could lead to serious problems.
First off, let's talk about what a custodial parent actually is. It's generally a mother or father who, by order of the court, has either sole or primary custody of a child and is the parent the child spends most of the time with. (More here on custodial parents and custody arrangements.)
So what happens when the custodial parent wants to move out of state? And what if the other parent is against the move? In most instances, the custodial parent will have to ask a judge for permission to move the child out of state. These "move-away cases" are typically some of the more difficult custody disputes. It's an area of law where even misunderstandings can be costly.
Moving away without court approval (usually from the court that issued the original custody order) can lead to big problems, such as a contempt order, fines, and jail time—plus a shake-up of the custody arrangement.
If you plan to move (or even travel) with your child, you'll want to ensure all the permissions are in order. You should check what the court order says; orders often require permission from the other parent before travelling out of the state or country. And you'll want to check in with the other parent if your trip will interfere with their visitation.
Not getting approval—from the court if the other parent won't agree—can even mean losing custody of your child or being criminally prosecuted for parental child abduction or kidnapping. Nolo Editor Stacy Barrett, who successfully defended her client in an extraordinary relocation case that went to criminal court, can speak to the risks in these kinds of situations.
"It was unusual because my client was charged with parental child abduction and kidnapping, even though she had full legal and physical custody of her daughter (M.) at the time she left the country with her," said Barrett.
"M.'s father had supervised visits only with M. pursuant to a temporary restraining order that the court granted after M. credibly alleged that he was touching her inappropriately. However, my client's custody order and the restraining order were temporary, so neither parent was supposed to leave the state without court permission."
"My client did leave to visit family in the Philippines, and M.'s father immediately went to court and got permanent legal and physical custody of M. despite the credible allegations of abuse. When my client returned to the U.S. to handle the matter, she was immediately arrested."
Though her client was ultimately acquitted, Barrett believes the case might have easily gone the other way.
"My client could've been sentenced to 13 years in prison."
The short answer here is yes. If the parents agree on a new arrangement that suits both parties, a judge can approve it (assuming it's in the child's best interests).
If the parents can't agree, then a coparenting counselor or custody mediator might be able to help. Failing an agreement, the moving parent will have to go to court and ask for permission to relocate.
Each state has its own factors that judges are supposed to weigh in move-away cases. In general, though, courts will weigh the benefits of relocation against the disruption to the noncustodial parent's visitation rights. Typically, whether an out-of-state move will benefit the child will be an important issue—for example, it's possible that a new job with better pay, being closer to extended family, or an educational opportunity will result in an improvement of quality of life for the child.
Again, the relevant factors will depend on where you live. In some states, the courts start with the presumption that a custodial parent should be able to move away with a minor child, meaning the noncustodial parent has to show the other parent shouldn't be allowed to do that. You can check out our breakdown of relocation laws by state, but if you have questions, you should contact an experienced family law attorney.
Noncustodial parents are usually not required by courts to get approval for relocation from either a judge or the other parent if they're planning on moving without the child. The next question is: Do they give up visitation rights as a result of moving?
The answer is usually no. If it's feasible to carry on the current custody and visitation arrangement after the move, both parents will need to keep on with the current set-up. But sometimes the disruption would be too great to carry on with the status quo.
Noncustodial parents seeking to relocate should first speak with the custodial parent about the move and attempt to work out a new, mutually beneficial custody and visitation arrangement. Once you have an agreement, you can submit it in writing to the court for approval. The judge will approve it if it's in the child's best interests.
If the parents can't agree on a new arrangement, the noncustodial parent will have to take the matter to court.
If you can't come to an agreement with your child's other parent, a lawyer can help you through the court process. Consulting a family law attorney is a good idea if you have questions or the custodial parent wants to take your child out of state against your wishes or a court order.
A move-away trial is one of the most challenging and complex of all custody disputes. With so much at stake, you should get help from someone who can represent your interests and protect your rights at trial if the situation is headed in that direction.
Our full breakdown on moving with a child out of state after divorce can be found here.