If you and your ex have children together and one of you wants to move away ("relocate"), you may or may not be able to take your children with you, regardless of whether the move is for a really good reason, like a new job. If both parents agree to the move there won't be a problem, but if one parent opposes it, then you'll have to ask a court to decide.
A parent is always free to move alone, but the court becomes involved if a parent wants to move away with the children and the non-moving parent objects. Even if a parent has "residential custody" (meaning, the child lives with that parent most of the time), that parent can't just pick up and move away. Both parents have to agree, in writing, and file their agreement with the court. If they can't reach an agreement, a judge will have to decide.
The parent who wants to relocate out of state or by more than 100 miles needs to provide notice of the move to the other parent at least 60 days in advance. If the parents don't agree, the relocating parent will have to ask permission from the family court, and the matter will go to trial. If the move would result in a change of custody or alter the existing visitation schedule, the court will order that too.
It's not a good 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 and impose other penalties against you. Depending on the details of what occurred, you could even be charged with parental kidnapping.
When deciding whether to allow a parent to relocate with a child, the most important thing that family law judges have to consider is what's in that child's best interests. If the parent who wants to move can't prove that the move is best for the child, the judge won't permit it.
To decide whether a move is in the child's best interests, the court will give equal consideration to each parent and must consider all of the following factors:
If a parent asks to relocate, the judge has to look at additional facts:
The court must consider whether either parent has repeatedly failed, without good cause, to take advantage of visitation opportunities. The court will also take the child's wishes into account, but only if the child is old enough to express a rational opinion.
The judge will look at the unique facts and circumstances in your case, apply the law, and make a decision about whether the child will be better off staying in the current home or moving away.
In one recent relocation case, Kentucky's appellate courts had to consider the effect of military service on custody and relocation. The parents, who lived in Ohio at the time, divorced and shared joint custody of their son. They also had a prescribed visitation schedule. The father had physical custody of the son during the school year and the mother had visitation during summer vacation and school holidays. The father, who was a reserve member of the Air Force National Guard, was deployed to Afghanistan for six months. He left his son, who was ten years old, in the care of his girlfriend and the child's paternal grandparents. The mother, who had moved to another state, took the child away and asked for a change in custody.
The Kentucky Court of Appeals noted that because the father was a member of the military, he was entitled to important legal protections under federal law. The appellate court noted that sometimes there are emergency situations where the courts have to act quickly to protect children, but that in this case, the child had to be returned to Kentucky to avoid further disruption to the child's life. The Court of Appeals granted the father a "stay," which is a temporary halt to the proceedings, and ordered that the issue of the son's residence be taken up at the conclusion of the father's deployment, when he could appear and argue his case.
In another recent relocation case, two parents, who had never married, lived together for a year after their daughter was born and broke up thereafter. A court gave the parents joint custody, with the child spending most of her time with the mother, and the father receiving "liberal visitation" of two days per week.
A few years later, the mother married and moved to another state, while the father remained in Kentucky. The mother then moved even farther away, to Virginia. The father objected to the mother moving the child so far away from him, and he went to court to ask a judge to give him custody. The Court of Appeals ruled that the child was well-adjusted to life with her mother in Virginia and that the mother's relocation was in the child's best interests.
Finally, in another recent case, a couple with one underage daughter divorced. The mother suffered from depression and agreed that the father should have primary custody of the child, though the mother received liberal visitation. The mother later moved away to California and couldn't spend as much time with her daughter, but she did eventually return to Kentucky and remarried there.
The child was hurt by the mother's absence, and their relationship became acrimonious. The mother went to court to demand that the daughter go to counseling to repair the relationship. In the meantime, the father unilaterally took the daughter and moved to Texas over the mother's objection. The case went to trial, and the judge refused to force the child to return to Kentucky, but never analyzed the child's best interests. The Court of Appeals sent the case back to the trial court so that that testimony and evidence could be presented about the girl's best interests regarding relocation.
If you or your ex have custody or visitation rights and want to relocate with your children, you should contact an experienced Kentucky family law attorney.