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 to share legal and physical custody 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. 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 you reach a custody arrangement by mutual agreement or a judge's decision, a court will issue a custody order that spells out exactly how it divided custody rights and responsibilities, 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, including 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 considers 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 the judge may turn into a court order.
If parents can't agree, they can hire a coparenting counselor or custody mediator to 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. Still, generally speaking, courts must weigh the benefits of moving against the disruption to the noncustodial parent's visitation rights.
Again, the exact factors a court will consider when deciding on relocation will depend entirely on the state's laws where you file the complaint. 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 child's possible adverse effect from reduced contact with the noncustodial parent. Some custody experts suggest that the stability and improved lifestyle which can occur when a custodial parent relocates can also provide great benefits to a child that outweigh any potential detriment due to 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. Other states, like Michigan, restrict a custodial parent from moving out-of-state or more than 100-miles away from the child's custodial home without parental or court consent. This restriction only applies in cases where the parents share legal custody. (Mich. Comp. Laws § 722.31.)
If you have questions about the relocation laws in your state, you should speak with an experienced family law attorney in your area.
Over time, there may be situations that arise which require a noncustodial parent to relocate. Unlike custodial parent restrictions, most states do not require a noncustodial parent to get approval 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 burdens the family. For example, suppose the noncustodial parent relocates 45 minutes away, and the custody order allows every other weekend visitation with the child. In that case, the parents will probably continue following the current order because it's not disruptive or harmful to the child. However, if the relocation is significant and impossible to continue the current arrangements, the noncustodial parent must act before moving or risk losing time with the child.
Noncustodial parents seeking to relocate should first speak with the custodial parent about the move and attempt to work out a new, mutually beneficial custody and visitation arrangement. Once you agree, you can submit your written agreement to the court for approval. As long as the agreement benefits the child's best interest, the judge will approve it.
If the custodial parent won't change the custody arrangement, the noncustodial parent should file a motion with the court to change the order. The noncustodial parent should prepare for the court hearing by preparing a detailed visitation schedule that addresses how the parents will handle transportation expenses. Additionally, parents should also include provisions that permit unlimited (within reason) electronic communication with the child to ensure that the child can communicate with both parents, regardless of where the child is staying. The judge will evaluate the case, including the reasons for relocation, and create a new visitation agreement if ongoing visitation benefits the child's best interests.
If an alternating weekend or frequent visitation schedule is impossible, the court usually awards the noncustodial parent extended school break, holiday, and summer vacation visits. The child will reside with the custodial parent during the school year.
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.
If you and your child's parent can't agree 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.