For parents, the end of a romantic relationship doesn’t necessarily mean the beginning of freedom. After a divorce or break-up, if parents want to take a new job or move somewhere else with a new love interest, they might find their hands are tied. Mississippi law might block them from moving away (“relocating”) with their children without clearing some legal hurdles first.
If a parent wants to move away and leave the children in their present home, there’s not a legal problem. Likewise, if both parents agree that one parent can move away and take the children, there’s not a problem (although the agreement should be written down). A problem arises when one parent wants to move away with the children, but the non-moving parent objects, and the move would disrupt the existing visitation and custody arrangement.
The parent that wants to move away and take the children must notify the other parent with plenty of advance warning. Although many states have very specific notice requirements, Mississippi does not. The most important thing is that if the non-relocating parent objects to the move, then the parent who wants to move has to go to court and ask the judge to change custody. If the court does change custody or allows a parent to move, it’s likely the judge will also divide up each parent’s financial responsibility for any costs incurred as a result of the new custody and visitation plan.
Don’t move away with your kids when your ex disagrees and the court hasn’t ruled yet. Consult a lawyer first.
In all matters that affect a child’s life, including relocation, the Mississippi family courts will only permit a parent to make custodial decisions that are in the child’s best interests. A child’s best interests are the “polestar,” or most important, consideration a judge is asked to make. To decide whether something is in the child’s best interests, the court must consider all of the following factors:
“Other factors” means that the court has to consider everything that bears on the child’s interests but isn’t necessarily covered in the other factors. For example, Mississippi’s high court has previously looked at a case where a parent was asking the court to move the children back and forth between Mississippi and New York every two weeks. The Supreme Court found that this was unreasonable, disruptive, and not in the children’s best interests.
A judge presiding over a relocation case might ask other questions, too, like the reasons for the move and whether a parent is moving to prevent the other parent from having contact with the kids.
In Mississippi, it’s a presumption (meaning, it’s assumed) that mothers and fathers are equally entitled to custody, regardless of gender. Having both parents involved is generally what’s best for the child, unless there’s a history of domestic violence, a parent is chemically dependent, or a parent has a history of convictions for serious crimes.
When custody has already been decided, for example, after a divorce or paternity action is finalized, then the custody order can’t be altered unless there’s been a material change in circumstances. This means that there’s been a serious change in the child’s life. The judge will look at all the evidence (“the totality of the circumstances”) to decide whether there’s been a material change.
In relocation cases, it’s not necessary to prove that a material change is harmful to the child. The parent who wants to move just has to show that the current visitation arrangement won’t work anymore and that it’s in the child’s best interest to change custody. The court has to decide whether the existing custody arrangement is unworkable because of a parent’s move, and if so, how and whether to change the existing order.
If the parents can’t agree about relocation, the judge will schedule a hearing, listen to testimony, and consider other kinds of evidence about the lives of the parents and the child. For example, the court might hear testimony from school officials and family members, or look at report cards and medical files. Shortly thereafter, the judge will apply the law to the case to reach a decision about whether to adjust custody to accommodate the request to move.
In a one case, the Mississippi Court of Appeals considered the case of a divorced couple who were the parents of two teenage daughters. Each parent had the right to spend time with the girls, but the girls primarily lived with their father after the divorce. Seven years after the divorce, the mother married a man who lived in a different city in Mississippi. She proposed to move the younger daughter to the new city. The father responded by asking the court to modify custody because the mother’s move substantially changed the family’s circumstances.
The trial court gathered evidence about all of the girls’ best interests, carefully applied the law, and concluded that custody should shift from mother to father. The mother appealed, but the higher court agreed with the trial court that there was more than enough evidence to change custody. The girls were old enough to testify on their own behalf; the older daughter was legally an adult. Both daughters testified that they weren’t happy living with their mother and since the divorce, they mostly stayed with their father, with whom they had a closer bond. The younger daughter added that she didn’t want to move away from her cherished home and community to a new home, and she didn’t want to leave her father behind. Importantly, she also testified that she didn’t want to be separated from her adult sister—a fact that was very important to the court.
If you or your ex have custody or visitation rights and want to relocate with your children, you should contact an experienced Mississippi family law attorney to assess your situation, advise you about your rights and obligations, and represent you in court.