We live in an increasingly mobile society. However, a simple move for a promotion or remarriage can become a complicated custody issue when parents are divorced.
Generally, a custodial parent (the parent with primary physical custody) has the right to relocate with the child out of state. But this right isn't absolute and in certain cases a court may prevent one parent from relocating to protect a child. Relocation issues are usually very complex, so it's best to seek an attorney's advice.
Alabama law requires the custodial parent to provide notice of any change in the child's residence to the other parent at least 45 days before the proposed move. While it's common for parents to move across town for work or into a new residence upon remarriage, when the proposed move is more than 60 miles away, the nonmoving parent can object to the relocation.
Once you've received notice of the other parent's plans to relocate, you have 30 days to file an objection with the court. A judge will schedule a court hearing, which you and your ex must attend the hearing. Both parents will likely have to testify. Because of the complicated legal issues surrounding move away cases, parents are usually represented by attorneys during these proceedings. If you have an attorney, your lawyer will prepare for the hearing and represent you in court.
In Alabama, one parent's proposed move reopens the question of who should get custody. If you're the parent objecting to the move, you have the burden of proving that it would be detrimental to let the child relocate with the custodial parent and that a change in custody to the noncustodial parent is appropriate. For example, in one Alabama case the court switched custody to the child's father after the mother (formerly the custodial parent) announced her plans to marry for a third time and move with the child to Texas. The judge decided that a change in custody was appropriate because the father was able to show several reasons why the move didn't serve the child's best interests.
A child's best interests are central to any custody decision. When a parent plans to move a child out of state, a court will take into account all factors that affect a child's well-being, including:
Specifically, in one Alabama case, a father unsuccessfully tried to prevent a mother from moving to a different city with the child. The child's mother showed that she had been the child's primary caregiver and that the move would benefit the child culturally and academically. She had remarried but supported liberal visitation between the child and father. Additionally, she and her new husband had sought counseling to help the child adjust to the divorce and remarriage. By contrast, the child's father couldn't show that changing custody would benefit the child. The father was self-employed, had no family nearby, spent most of his time at flea markets, and was virtually uninvolved in the child's upbringing and education.
In another case, a mother who had moved out of state couldn't regain custody of her daughter from the child's grandparents, who lived in a different state. The mother was residing in California and had voluntarily surrendered custody to the child's grandparents. Whether a parent agrees to give custody to the other parent or grandparent(s), the surrendering parent can't regain custody without showing that the change will materially promote the child's welfare. This is a higher standard than showing custody with the parent will serve the child's best interests. In this case, although the mother's financial and living situation had improved, she couldn't show that the child would be better off removed from her grandparents, with whom she'd lived since infancy.
Relocation cases are multi-faceted—it's important that you understand what's at stake if you or your ex is contemplating a move. If you have questions about a move-away case, contact an experienced family law attorney in your area.