What if the custodial parent wants to move away from the non-custodial parent?
UPDATED: February 20, 2013
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First look to the language in your existing divorce judgment or visitation agreement. Often those agreements specifically address this issue and may even restrict a move. If so, you will have to renegotiate the terms of the agrreement as courts are relunctant to allow a change from the original agreement.
If the custodial parent plans to move away from where the non-custodial parent lives, the non-custodial parent may petition the court to change the child custody arrangement based on the relocation. The non-custodial parent must convince the court that the moving plans of the custodial parent constitute a material change in circumstances, and that the move is not in the best interest of the child or children. Where the relocation distance is small, there might not be a material change in circumstance upon which a parent could move the court to modify an existing custody and visitation order. Since typically a material change of circumstance is required before a court will modify an existing custody or visitation order, a move across town ordinarily is an insufficient basis upon which the existing order would be changed. Although the relocation may make the visitation exchange more difficult, it may be more practical to comply with the existing child custody order.
Where the relocation distance is great, the custody case becomes more complex. The court will consider what is in the best interest of the child after determining whether the move actually constitutes a material change in circumstances. Determining whether the move away is in the best interest of the child will include a consideration of facts such as (1) the existing custody and visitation arrangement, (2) the attachment and support of the non-custodial parent and other relatives to the child, (3) the child's ties to the community, school, church or synagogue, and friends, and (4) the child's desires and wishes. Only a small minority of states require a custodial parent to get the written consent of the non-custodial parent or a court order based upon a finding of the court that it is in the best interest of the child to allow the move. In many states, a custodial parent can relocate if there is a valid reason for the relocation and the move does not result in harm to the child.
The ability of the child to have continuing and frequent contact with both parents, without a detrimental effect due to the relocation, is the primary consideration for a court in modifying an existing order to allow the relocation. The modified order of the court could provide additional time with the non-custodial parent during summer and other school recesses and the obligation of the custodial parent to pay the additional transportation expenses incurred in facilitating the visitation exchange. In California, the impact of a planned long-distance move on a noncustodial parent’s relationship with his children may be considered before the children can be moved out of the state. If the moveaway will detrimentally harm the relationship between a child and a parent, together with other factors, it may be sufficient to justify a change in custody to the other parent.
Custodial parents who move away with the child without providing notice to the other parent may not only face a change in custody to the other parent but also criminal charges of kidnapping. Before any move is entertained, the non-custodial parent should be informed of the impending move and an effort made to reach a mutually acceptable parenting plan based upon the proposed location of both parents.
A relocation by the custodial parent requires careful consideration of the non-custodial parent's rights as early in the planning process as possible. Move-away cases can become very difficult to resolve and court involvement can be both costly and time consuming. Thus, leaving in the dead of the night without leaving a forwarding address could have very detrimental effects to the custodial parent.