When parents divorce or separate, it naturally brings changes to a family. Many parents move following a divorce, whether to begin a new job or a new life. A judge can’t force a parent to remain in the state following a divorce. However, in some instances where one parent relocates, a judge will change custody to serve a child’s needs.
A custodial parent has the right to travel freely and even relocate with a child under certain circumstances. Nevertheless, a child’s best interests are central to a custody case. If a move would negatively impact the child’s emotional or physical needs, a judge may transfer custody to better accommodate the child’s needs. Relocation cases can be complicated. If you have questions about your case, contact a local family law attorney for advice.
When parents split up, the parents (or a judge) will need to decide where the couple’s children will live and how visitation will take place. When parents can’t agree on custody, a judge will create a custody arrangement based on the child’s best interests.
Your custody order will cater to the unique needs of your family. It will designate which parent has physical custody (where child lives) and legal custody (right to make decisions on child’s behalf) and set forth a visitation schedule. Parents can share physical and legal custody, or one parent might have sole physical custody even though the parents have joint legal custody. Even if a couple shares physical custody of a child, one parent may be listed as the custodial parent, which can provide an advantage in relocation proceedings. However, a noncustodial parent can overcome that advantage if certain factors are present.
A custodial parent has the right to change residences or move neighborhoods with a child as long as the move won't interfere with the child’s rights or best interests. Under California law, a parent must provide written notice of any plan to move away with the child for more than 30 days. The notice should be sent at least 45 days before the proposed move—to allow the parents to work out a new custody or visitation agreement. The nonmoving parent can file an objection to the other parent’s proposed relocation and ask a court to modify custody as a result.
For example, in one California case, the court upheld the mother’s right to move 40 miles away with the child. The mother had been the sole custodial parent for one year, and the move was employment-related. The new job would allow the mother to spend more time with her children and would still allow the children’s father regular and frequent visitation. For these reasons, the court deemed that the move was appropriate and wouldn’t interfere with the child’s well-being.
A parent can move without automatically losing custody. In move-away cases, a change in custody is appropriate only if the move would severely, negatively impact the child. If one parent objects to the move, a judge will schedule a hearing to determine whether a change in custody or visitation is appropriate in light of the proposed move. A judge won’t necessarily remove a child from a custodial parent just because a move will be hard on the child. Instead, a change of custody is appropriate if the noncustodial parent can show that the move would be detrimental and that a change of custody would serve the child’s best interests. Specifically, a judge will look at several factors to determine if a change in custody is appropriate, including:
For example, in one California case, a father obtained custody of his children following the mother’s move to Ohio. The children’s mother had no reason for the move other than to live near where she grew up. The father showed that the relocation would be detrimental to the children’s well-being because it was such a far distance and the kids were struggling emotionally as a result of the divorce. The court looked at several factors, including the children’s poor social and emotional skills, the extreme distance of the move and the parents’ poor relationship with each other. Ultimately, the court found that changing custody could help the children improve their relationship with their dad and would give the kids more stability.