How to Stop the Custodial Parent from Moving Away With Your Child
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Stopping a custodial parent from moving away with your child usually requires invoking the court with appropriate jurisdiction over your case. You will likely need to file a motion arguing that the move constitutes a material change of circumstances and/or that the move away is not in the child's best interests. The rules vary depending on the nature of the existing custody agreement, and the specific laws of your state.
How to Stop a Move Away by the Custodial Parent
Parents without custody still have rights to the child, and few courts will permit a parent - even one with sole custody - to make a unilateral decision to move away with the child, provided that the noncustodial parent challenges it in court. A successful argument, e.g. - that the move away would constitute a material change in circumstances (long distance, changed schools, routines disrupted, etc), can halt or delay the custodial parent's plans.
Long Distance Moves
A custodial parent planning to move away long distances must first ensure that the custody arrangement permits it, or that the court has permitted the arrangement to be modified. "Long distance" usually, but not always, is defined as a move of at least 100 miles.
Obtaining this permission involves filing a notice of intent to relocate (move away) with the court in the jurisdiction where s/he currently resides. The non-custodial parent always receives a notice of filing in advance.
When you receive this notice, you may request a hearing. This hearing is your opportunity to explain to the judge why the noncustodial parent's move away is not in the best interests of the child.
Proving Your Case
Though the specifics may vary state to state, the key in all such cases is: "What is in the best interests of the child." This will always be the determining factor. The parents' needs and interests are only relevant to the extent that they affect the child's best interests. In making this determination, most courts consider:
- The custodial parent’s reason for the move away. If the move is necessary, perhaps because the custodial parent has received a job transfer or because the move will allow the parent to provide a better life for the child, then the court may grant the custodial parent the right to relocate with the child. This is especially true when the custodial parent proposes a visitation schedule that would still permit the child reasonable access to the other parent.
- The child's community relationships. If the move involves changing schools, and/or there is local extended family, then these will be considered in light of the child's preferences (if the child is old enough).
- The relationship of the child with the non-custodial parent. If the child has strong ties to both parents, and the non-custodial parent provides a solid, stable and nurturing environment for the child, this too will weigh against allowing the child to move away.
In most states, either a guardian ad litem or a custody evaluator may be appointed during this process. This person's role will be to speak for the child, to investigate the circumstances of the child’s life and relationship with his parents, and to make a recommendation for the court regarding whether the custodial parent may move away with the child or not.
The noncustodial parent should convince the guardian ad litem - as well as the court - that it would not be in the best interests of the child to be uprooted. A decision against the custodial parent will bar him or her from moving, if s/he wishes to keep the child. The judge may also decide from the circumstances of the dispute that further changes in the custody agreement are warranted.
The process of moving away and separating children from either of their parents can be devastating. If you find yourself in this situation, you should always speak with an attorney who can assist you in filing the appropriate legal paperwork and collecting the proper evidence to stop the move away and/or change the custody agreement.