If you and your ex have children together and one of you wants to move away with the kids (“relocate”), you may or may not be able to do it, regardless of whether you have a good reason. Even if both parents agree to the move, you still have to clear some legal hurdles. And if one parent opposes the move, a family court judge will make the final call.
A parent is always free to move alone, but a court may become involved if a parent wants to move away with the children over the other parent's objection.
The moving parent must provide the non-moving parent written notice of the proposed move. If the parent’s change in residence will significantly affect the child’s contact with non-moving parent, the moving parent will have to file a motion in court asking to change the current custody and visitation order to allow the child to move.
It’s important to know that if you want to move away with your kids, you have to make sure you personally serve this notice (meaning, you or your designee must hand deliver the paperwork to the other parent). Under certain circumstances, you may be able to send it via certified mail no less than 30 days before the proposed move actually happens.
The notice has to contain special language or it’s not legally sufficient. It has to say: “The relocation of the child may be permitted and the proposed revised residential schedule may be ordered by the court without further proceedings unless within 21 days you file a response and an alternate revised schedule with the court and serve your response on the person proposing the move and all other persons entitled by the court order to residential time or visitation with the child.”
The parent who receives the notice has to file a response within 21 days. If the parent objects to the move, that parent has to prepare an alternate schedule and serve it on the moving parent. Failure to do so means the parent who opposes the move is waiving, or giving up, the right to object in court.
Don’t move away with your kids when your ex disagrees and the court hasn’t ruled yet. Consult a lawyer first. If you leave before getting the court’s permission, the judge can order you to return the child and punish you, including by transferring custody to the non-moving parent.
Under Montana law, the best interests of the child are “paramount,” which is another way of saying that they’re the most important consideration. Put simply, if the parent who wants to relocate 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 must consider all of the following factors:
If a parent asks to relocate after the first custody order has been issued, the court must find that there’s been a change of circumstances. To do so, the judge has to look at additional facts, like:
Parents who are in the military, and people whose former partners are in the military, need to know that under Montana law, the court can’t make custody decisions based solely on a parent’s military service. If a court modifies an existing custody or visitation order based in part on the a parent’s military service orders, that modification will only be temporary and it reverts back to the original order when the parent’s service ends. Finally, if a parent asks to change the custody or visitation plan after a parent returns home from military service, the judge can’t consider that parent’s absence due to military service when determining the child’s best interests.
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. If the court decides that the move is in the child’s best interests, it will change the custody and visitation plan to provide a new schedule and to divide up any transportation costs associated with the new schedule.
In a very recent case, the Montana Supreme Court considered a situation where an unmarried couple who were the parents of a young child ran into a custody and visitation dispute after they split up. While the parents were still together, the mother had stayed at home with the child while the father worked. After the relationship ended, they co-parented without an official court order, with the child continuing to live mainly with her mother. Later, the parties agreed to a custody and visitation schedule, which a judge approved. The child still continued to live with her mother Monday through Friday, and to spend the other days with the father.
The mother then met a man, became engaged, and asked to move to Nevada over the father’s objections. The trial court allowed the move and changed the father’s visitation to one long weekend per month, noting that although the child would encounter some difficulties with the move (like leaving her friends behind in Montana) the many benefits of relocation outweighed any problems. The Montana Supreme Court concluded that although the father was dissatisfied with the outcome, the trial court had carefully combed through all the evidence and applied the best interest factors, so the move had to be permitted.
In an older, but important case, the Supreme Court took up the question of a proposed relocation in a situation where a divorced couple were parents of two children, one of whom had Down’s Syndrome. During the divorce trial, teachers, therapists, and trainers testified about the child’s many special needs. Based on the testimony, the trial court gave the mother physical custody of this son during the school year and gave the father two months and ten days in the summer. The purpose of this arrangement was to make sure the affected child had adequate care during the school year, when he needed more contact with treating professionals. Later, the mother asked to move to Florida over the father’s objection. The father tried to block her move by asking the judge to restrict her travel so she would remain in Montana.
The trial court refused to impose a travel restriction, and the Supreme Court agreed. The father argued that the trial court failed to account for his son’s opinion, but the Supreme Court noted that due to the disability, the child’s opinion could not be determined. The trial court also correctly considered the very strong relationship between the mother and the child, as well as the fact that she was uniquely and intricately involved in her son’s care and treatment. The custody order was soundly based on the testimony of many medical professionals and educators, who stated that the best thing for the child was to remain with his mother during the school year so he could benefit from stable and continuing care.
If you or your ex have custody or visitation rights and want to relocate with your children, you should contact an experienced Montana family law attorney to assess your situation, advise you about your rights and obligations, and represent you in court.