Relocation with a child is quite common these days. A parent might want to relocate with a child due to a job transfer, to be close to family, remarriage or countless other reasons. If the other parent does not agree, a court must determine whether relocation out of state with the child should be permitted.
Whether a court will permit a parent to relocate with a child depends on many issues. The main issue, however, is the balance between a parent’s right to freely move, and the other parent’s right to a relationship with his or her child.The outcome depends greatly upon the type of custody arrangement and the stage of the divorce litigation.
First, a court must review the present custodial arrangement. If there is arrangement, a court must first make one. In making a custody determination, a court is guided by the best interests of the child, which includes a consideration of such factors as:
the parents’ ability to agree, communicate and cooperate in matters relating to the child; the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child’s education; the fitness of the parents; the geographical proximity of the parents’ homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents’ employment responsibilities; and the age and number of the children. A parent shall not be deemed unfit unless the parents’ conduct has a substantial adverse effect on the child.
In determining what is in a child’s best interests the “paramount consideration is the safety, happiness, physical, mental and moral welfare of the child” and courts have said that neither parent has a superior right to custody, and that each case must be decided by reviewing the facts and circumstances.
If the parents already have reached an agreement or a court has entered a custody order, then a court must look to that agreement or order to start a relocation analysis.
If the parents have joint physical custody
Joint physical custody is defined as “joint responsibility for minor day-to-day decisions and includes continuous custody by both parents. Joint physical means that the child spends significant time with each parent. If the parents have an actual joint physical custody, then relocation is considered a change of custody and courts employ the rigorous best interest standard.
If one parent has sole physical custody or is the parent of primary residence
The relocation analysis is quite different if a parent has sole physical custody. Sole custody is where the primary caretaker has the greater physical and emotional role. Where a sole physical custody arrangement exists, courts do not utilize a best interest standard in determining relocation; rather, it is guided by a two-prong test. First, the court must determine if the relocation request is made in good faith and for good cause, and not to frustrate the rights of the other parent.
If the parent seeking to relocate can show good faith, then the parent opposing the move must prove the second prong of the test, namely, that the move would be inimical to the child’s best interest–in other words, that it would be detrimental to the child.
In the determination as to whether relocation will be detrimental to a child, a court must consider the following factors:
- The reasons given for the move;
- The reasons given for the opposition;
- The past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move;
- Whether the child will receive educational, health and leisure opportunities at least equal to what is available here;
- Any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location;
- Whether a visitation and communications schedule can be developed that will allow the non-custodial parent to maintain a full and continuous relationship with the child;
- The likelihood that the custodial parent will continue to foster the child’s relationship with the non-custodial parent if the move is allowed;
- The effect of the move on extended family relationships, here and in the new location;
- If the child is of age, his or her preference;
- Whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent;
- Whether the non-custodial parent has the ability to relocate; and
- Any other factor bearing on the child’s best interest.
The court should consider all of the above factors after a relocation hearing with the parents, psychological/custody experts and any other relevant testimony.
Relocation cases are challenging and emotional, and the law is complicated. Any one considering relocating should consult with an attorney as soon as possible to ensure he/she can meet the necessary burden of proof.
Read the full decision in Bauer v. Lewis, setting forth the criteria for relocation
