If you're divorced with children, you don’t necessarily have the same parental freedom you used to enjoy. For example, if you want to pick up and move somewhere else with your kids, you might not be able to go if your spouse doesn’t agree. Instead, you’ll have to work your way through the family courts and get a judge’s permission to move.
A parent is always free to move, but if a parent wants to take the children along, over the other parent's objection, the matter will end up in court, where a judge will decide if the children should relocate as well.
The judge will look at the history of the case. If the request to move comes before the court has made its initial (first) custody order, then the court will simply apply the “best interest of the child” factors set forth in Idaho’s family law statutes to decide if moving away is best for the child.
If the request to move comes after the court has made an initial custody order, then the analysis changes a bit, and the moving parent must show two things. First, the relocating parent must prove that there has been a “permanent and material change of circumstances.” A permanent and material change of circumstances means that there’s been a major change in the child’s or the parent’s life since the last custody order was issued that would justify the move. Second, the court will apply the best interest factors to decide if the move should be allowed and adjust the custody order accordingly.
If there’s already been an initial custody order, either the parent who wants to relocate or the parent opposing the move can file a motion to modify custody and permit or deny relocation.
If you want to move away with your kids over your ex’s objection, the court will set up a final hearing, which is like a trial. You and your ex must appear, with or without attorneys—however relocation cases are incredibly complex and emotional, so it's best to hire an attorney. During the hearing, you can call witnesses to testify on your behalf, present evidence, cross-examine your ex’s witnesses, and dispute the value of your ex’s evidence. The judge will consider everything, apply Idaho law, and issue a decision either allowing or blocking relocation.
It’s a bad idea to move away with your kids when your ex disagrees and the court hasn’t ruled yet. If you leave before getting the court’s permission, the judge can order you to return the child to the previous residence, and doing so will certainly leave a bad impression on the court.
Under Idaho law, the best interests of a child is always the paramount consideration in every relocation case, regardless of whether the case is an initial determination or a modification of an existing order. If moving away with a parent isn’t in a child’s best interests, the court won’t allow it.
To decide whether a move is in the child’s best interests, the court must consider all of the following factors:
Both parents need to apply the facts of their case to the above factors and give the judge the information necessary to decide whether the child is better off moving away or staying in the current residence.
In one key relocation case, the parties, who had twin sons, had already divorced. The divorce order gave the mother physical custody of the boys (they lived with her most of the time) and awarded both parents joint legal custody (meaning, they shared an equal voice in making important decisions about their sons’ lives, like how they should be educated or what medical care they should have).
The mother later asked to change the custody order so she could relocate to another state with her twin sons after marrying her new fiancé. The father opposed the move, making the very specific argument that it was in the best interests of the children to remain at their current residence because the mother (who was an inactive member of the Church of Christ) wasn’t religious at all whereas the father (who was Catholic) was a very religious person. The father claimed that his character was superior to the mother’s because of his religious convictions. The Idaho Supreme Court concluded that it’s legally improper to make a custody or relocation decision based on a parent’s religious practices and beliefs and that courts can’t make judgments about the superiority of a parent’s religious values when applying the best interest factors. The Supreme Court returned the case to district court with instructions for the parents to go to mediation to work out their differences.
In another important case, the parents of two children divorced, and the judge awarded primary physical custody to the mother and joint legal custody to both parents. The divorce order required the mother to live in one of two specified counties and forbade her from moving the children without the father’s consent or a court order. The mother later asked to move to another county that was 160 miles away so she could pursue better employment. The father told the court that his children shouldn’t be moved because, in part, he had adjusted his work schedule to spend more time with them. The Idaho Supreme Court applied the best interests factors and found that where the mother was involved with a man who was on criminal probation, where the children had grown more mature and independent since the divorce, and where the children had already spent most of their lives in one neighborhood and with both parents readily available to them, the mother could not upset the custodial arrangement and relocate with her kids against their father’s wishes.
If you have custody or visitation rights and you want to move out of Idaho with your children, or if your ex has custody or visitation rights and wants to take your children away against your wishes, you should contact an experienced Idaho family law attorney to assess your situation, advise you about your rights and obligations, and represent you in court.