Court-ordered custody arrangements can work well for years, especially when both parents live close to each other. But what happens when a parent wants to move with the child to another state, another area in the same state, or even another country? These "move-away" cases are among the most difficult types of custody disputes, because they often involve a conflict between the custodial parent's right to move freely and the right of both the other parent and the child to maintain their relationship.
In order to understand the issues involved in move-away cases, it's important to know some of the basics of child custody laws. When parents decide to divorce, they will need to make legal custody arrangements that meet their children's best interests. Parents who were never married but are separating (or never lived together) may also seek custody orders.
Child custody arrangements include both legal and physical custody. In most states, it's the default preference for parents to share joint legal custody—meaning they make the important decisions together about their child's health, education, and welfare. Physical custody usually refers to where the child lives most of the time. But it's also becoming more common for parents to share joint physical custody, so they can both spend a significant amount of time with their child.
If parents can't agree on custody (often called a "parenting plan"), a judge will have to make these decisions for them. Whether the custody arrangements result from the parents' agreement or a judge's decision, the court will issue legal custody order that spells out exactly how the parents will divide custody rights and responsibilities.
Even when parents share joint physical custody, one parent is typically designated as the primary custodial parent. In a typical joint custody situation, for example, the child lives with the primary custodial parent on school weeknights but spends weekends, some holidays, and at least part of school vacations with the other parent (who might be called the "noncustodial parent" even when that parent shares physical custody).
Parents may ask a judge to make changes in existing custody orders, but they usually must show that there has been a substantial change of circumstances to justify the modification. As with all custody-related decisions, the judge will decide whether the modification would be in the child's best interests. The parents may agree with each other about new custody arrangements, but a judge must approve their agreement to make it part of a new order.
When the primary custodial parent plans to move with the child, the other parent may request a custody modification—for instance, to seek primary physical custody or to ask for a change in the visitation schedule. And sometimes, parents who don't have primary custody—but share joint custody—might request a change in the existing parenting plan based on their own planned relocation (more below on that issue). The judge may consider the relocation as a substantial change of circumstances, especially if it will significantly affect one parent's ability to maintain a meaningful relationship with the child (more below on what goes into the judge's decisions in move-away cases).
In many situations, custodial parents must get permission—from the other parent or a judge—before they are allowed to move with a child out of the state or a certain distance away from their current residence. Sometimes, these restrictions are in state law. Other times, they're in the custody orders (typically part of a final divorce decree) or in temporary restraining orders issued during a divorce proceeding.
Some states have laws that require parents to give advance notice and get permission from the other parent or a judge before moving a child. Some of these laws apply only to moves out of state, while others also apply to moves of a certain distance within the state. For example:
These state laws generally spell out the factors judges must consider when deciding whether to allow the relocation (more on that below).
Even in states where the laws don't explicitly require permission before moving with a child, judges in some states may include similar restrictions in divorce judgments or custody orders.
Typically, when parents have signed a divorce settlement agreement—which includes their agreements on custody and coparenting arrangements—the agreement is made part of their divorce judgment. But when the agreement includes provisions on what will happen if the noncustodial parent moves with the child, those provisions won't necessarily control the outcome of future legal proceedings if they violate state law—for instance, if the agreement calls for an automatic change in custody without requiring a judge to determine that the modification would be in the child's best interests.
After you've filed for divorce, it's common for the court to issue "temporary restraining orders" (TROs) that are meant to maintain the status quo in terms of both parents' access to your child or children. Typically, these TROs prohibit either spouse from taking a child out of the state without the other parent's permission.
Often, one or both of the spouses will request TROs. But in some states, standard TROs take effect automatically as soon as a spouse files divorce papers. In California, for example, one of the initial divorce forms (the summons) must include an automatic temporary restraining order (ATRO) that prohibits either spouse from removing their child out of the state—or even applying for a passport for the child—without the other parent's advance, written consent or a court order. (Cal. Fam. Code § 2040 (2022).)
Parents could face serious consequences if they move a child in violation of a law or court order, including:
If you plan to move—or even travel—with your child, make sure you know whether you'll need permission. Check your custody order (which may be part of the divorce judgment) for details about any requirements. And if your divorce case is still ongoing, make sure you carefully read all of the paperwork to see if it includes restrictions on moving or traveling with your child.
If the noncustodial parent consents to a custodial parent's move, both parents may also agree on a new custody arrangement that considers the new location and provides the noncustodial parent enough of time with the child. They'll both need sign a written agreement (sometimes known as a stipulation).
Even when the parents agree to a custody modification, however, they'll need to get a judge's approval. If the agreement is in the child's best interests, the judge will approve it and make it part of a new court order.
When parents can't agree, they may hire a coparenting counselor or custody mediator to help them find a solution that works for both of them and the child. But if that doesn't work, and state law or the existing custody order requires a judge's permission for the planned moved, the moving parent will have to go to court and file legal paperwork (a "petition" or "motion") asking the judge to grant the request to relocate.
As with all custody disputes, judges must follow state law when deciding whether to allow a custodial parent to move with the children, or whether to grant the nonmoving parent's request to modify the existing custody order. State laws on relocations and child custody vary a lot, so the exact circumstances that the judge must consider will depend on where you were divorced (or where your previous custody order was issued).
Generally speaking, judges will weigh the potential benefits and disadvantages of the move in terms of the child's best interests. For example, a planned move might increase a child's overall quality of life as a result of:
On the other side of the equation, the judge will consider possible negative effects of the planned move on the child's well-being—especially reduced contact with the noncustodial parent.
Different states place more or less weight on the custodial parent's right to move with a child. In some states, the law presumes that a custodial parent has the right to change a child's residence unless the other parent provides evidence to convince a judge that the move would harm the child's welfare. In other states, the parent who wants to move must prove that it would be in the child's best interests. And still other states don't tip the scales for or against the moving parent.
State laws also list specific factors that judges must consider when they're deciding whether to allow a parent to move with a child or whether to grant the other parent's request to change custody because of the move. Typically, these factors include:
Noncustodial parents usually don't need to get approval for a move from the court or the child's other parent unless they wish to relocate with the child.
But does a noncustodial parent give up visitation rights after relocating? In most cases, no. If it's feasible to continue the current custody and visitation arrangements after the move, both parents will need to abide by the orders. However, the court doesn't expect a custodial parent or a child to follow a custody order that no longer benefits the child or that burdens the family.
For example, suppose your custody order allows you parenting time (visitation) with your child every other weekend. If you relocate 45 minutes away, you can probably continue with that arrangement because it wouldn't be disruptive or harmful to your child. However, if your planned relocation will be far enough away that it would be impossible or very difficult (or expensive) to continue the current arrangements for parenting time, you must act before moving or risk losing time with your child.
If you're a noncustodial parent who's planning to relocate, you should first speak with the custodial parent and try to work out a new, mutually beneficial arrangement for parenting time. Once you agree, you may submit your written agreement to the court for approval. As long as the agreement benefits the child's best interest, the judge will generally approve it.
If the custodial parent won't agree to change the current custody and visitation order, you'll need to file a motion with the court to change the order. Ahead of the court hearing, you should prepare a detailed visitation schedule that addresses how you and the other parent will handle transportation expenses and remote communication (like regular video calls). The judge will evaluate the case, including the reasons for relocation, and create a new visitation agreement if that would serve the child's best interests.
If an alternating weekend or frequent visitation schedule is impossible after either parent's move, judges will typically award the noncustodial parent extended school break, holiday, and summer vacation visits.
Parents must understand that, until they agree (in writing) to a new arrangement or the court changes its orders, they must both comply with existing orders.
What if you don't have an existing custody order (including a temporary order during a divorce)? Can you move with your child? And if your kid's other parent wants to relocate with the child, can you do anything about it? The answers to those questions depend on the circumstances.
You're generally free to move with your child if you aren't married to the other parent, the child has been living with you, and neither parent has filed a custody proceeding. However, keep in mind that both parents (whether married or not) have parental rights over their children, with or without a court order. For example, that means if you're a single mother and you move with your child, the father could file a legal proceeding to establish parentage (paternity) and seek custody or visitation—especially if he's been seeing the child regularly and wants to keep that up.
You should also be aware of potential legal problems when you take or keep a child out of the country without the other parent's consent. If your child has been living in the U.S., and you take the child to another country that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, the other parent may file a legal proceeding to get the child back. These "Hague Convention" cases often arise when marriages are in trouble and one parent takes the kids to stay with family in another country (or keeps them there beyond the time of a planned visit) while contemplating divorce. Learn more about international child custody and abduction laws.
If you and your child's other parent can't agree about a relocation on your own or in mediation, you'll almost certainly need to hire an experienced family law attorney to help you through the legal process. Move-away cases are one of the most challenging and complex custody disputes. With so much at stake, you should get help from a professional who can represent your interests and protect your rights.