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 – meaning that both 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 non-custodial 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 then 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 non-custodial parent opposes the move because he or she will lose precious visitation 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 of custody disputes.
Typically, a child can’t be removed from his state of residence without prior approval from the court that issued the original custody order. A custodial parent that wants to move a child out-of -state must first obtain court permission. If the custodial parent moves the minor child without court permission and against the non-custodial parent’s wishes, the court may sanction (punish) the custodial parent with orders of contempt, which can include fines and jail time.
A move-away order allowing a parent to move a child from the state may be entered by consent of both parties or by the court after a hearing. 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 co-parenting counselor or mediator trained in child custody issues who can help them attempt to resolve the matter. If mediation fails, the parent that wants to move 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 non-custodial 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, it is likely that a court will 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 non-custodial 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 determine as a result of the decrease in visitation time.
Moreover, in some states, there is a presumption that a custodial parent has a right to relocate with a minor child, which places a burden on the objecting non-custodial 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
that can explain your options.