When parents decide to divorce (or separate if they were never married) they will need to make custody arrangements that meet their children’s best interests. These arrangements must address how legal and physical custody will be shared between the parents. Legal custody includes the right to make important decisions about a child’s health, education, and welfare. Physical custody refers to the right and responsibility of keeping, supervising, and caring for the child.
It's common for parents to share joint legal custody—meaning they both make decisions regarding their child—but the division of physical custody varies greatly, depending on the circumstances of the particular case and the laws of the state in which the matter is pending.
For example, parents can agree to share joint physical custody, which is where parents spend significant or equal amounts of time with the child, or they can choose to make one parent the primary custodial parent—meaning the child lives primarily in that parent’s home. In the latter situation, the custodial parent has primary physical custody and the other parent (the noncustodial parent) has a right to visitation or “parenting time” with the child.
If parents can’t agree on custody, a judge will have to make these decisions for them. Whether the custody arrangement is reached by mutual agreement or a judge’s decision, a court will issue a custody order that spells out exactly how custody rights and responsibilities have been divided, including who the custodial parent is.
Court-ordered custody arrangements can work well for years, especially when both parents live in the same town. However, what happens when the custodial parent wants to move to another town or out-of-state? What if the noncustodial parent opposes the move because it will result in lost time with the child? In this situation, the custodial parent will likely have to go to court, and ask a judge for permission to move the child out-of-state. These “move-away cases” are among the most difficult types of custody disputes.
Typically, a parent can't move a child to another county or state without prior approval from the court that issued the original custody order. If the custodial parent moves the minor child without court permission and against the noncustodial parent’s wishes, a judge may sanction (punish) the custodial parent with a contempt order, which can include fines and jail time. A judge could even change custody arrangements in favor of the noncustodial parent.
Parents can agree to a relocation. If both parents consent to the child moving and can agree on a new custody arrangement that takes into account the new location and provides the noncustodial parent a sufficient amount of time with the child, a judge may approve it if it meets the child's best interests. When parents agree to an out-of-state move, they must sign a written agreement (known as a stipulation and consent agreement), which may be turned into a court order after a judge approves it.
If parents can’t agree, they can hire a coparenting counselor or custody mediator who can help guide them toward a resolution. If mediation fails, the moving parent will have to go to court and file a “petition” or “motion” (legal paperwork) asking the court to grant the request to relocate.
Each state has its own set of legal factors its courts must consider in move-away disputes, but generally speaking, courts must weigh the benefits of the move against the disruption to the noncustodial parent’s visitation rights.
Again, the exact factors a court will consider when making a decision on relocation will depend entirely on the laws of the state in which the action is filed. However, courts generally consider whether the out-of-state relocation constitutes a real benefit to the child, such as an improvement in the overall quality of life due to:
The court will then need to weigh these potential benefits against the possible adverse effect on the child from reduced contact with the noncustodial parent. Some custody experts suggest that the stability and improved life-style which can occur when a custodial parent relocates can also provide great benefits to a child that outweigh any potential detriment as a result of the decreased visitation time.
Moreover, in some states, there's a presumption that a custodial parent has a right to relocate with a minor child, which places a burden on the objecting noncustodial parent to overcome that presumption.
If you have questions about the relocation laws in your state, you should speak with an experienced family law attorney in your area.
If you and your child’s parent can’t come to an agreement on your own or in mediation, you should hire a lawyer to help you through the court process. A move-away trial is one of the most challenging and complex of all custody disputes and with so much at stake, you should get help from someone who can represent your interests and protect your rights at trial.
If you have questions or find yourself in a situation where the custodial parent wishes to take your child out of state against your wishes or against a court order, you should contact an experienced family law attorney in your area.