Fighting Relocation

Since the laws governing parental relocation vary from jurisdiction to jurisdiction, a parent trying to block the relocation of his or her children must understand and follow the detailed rules to prevent that relocation. The custodial parent who fails to follow the rules can loose custody. State laws may stipulate:

> The custodial parent seeking to relocate must modify the noncustodial parent well in advance. Many state laws specify the timelines for notification. Those same laws also provide specific instructions regarding the information included in the notification. In states that require notification, the other parent may also usually file an objection to the relocation or file a motion to prevent the relocation.

> Some states require not only notification, but consent of the other parent. In the event the both parents do not consent, the parent seeking to relocate must bring a motion seeking permission of the court. This often would include a request for a change in custody.

>In disputed cases, courts decide based on legal presumptions and burdens of proof. The particular legal presumptions and burdens of proof in each state dictate how a case should be presented and provide clues into the potential success or failure of a motion to relocate.

The noncustodial parent who maintains consistent contact of his or her children is a better position to object to relocation of a child by the other parent. The parent who remains actively involved in his or her child’s life – his schooling, medical care and extracurricular activities — can use these facts in support of his or her claims. A parent with limited involvement has a greatly diminished chance to contest the relocation.

The presumption whether to allow or disallow a relocation may depend and change based on the custodial situation.

For example, in many jurisdictions, when the custodial parent with primary physical custody seeks to relocate, the noncustodial parent faces a rebuttable presumption that move is permitted, but demonstrating that “the detrimental effect of the relocation outweighs the benefit of the change to the child” may rebut the presumption.

Detrimental effects include a diminution in the noncustodial parent’s from what it had been. As a result, for the noncustodial parent, involvement before the requested relocation can be critical. For noncustodial fathers, who often feel at a disadvantage in relocation battled, the fight may be in gaining joint custody from the outset. Every agreement that diminishes his role may have significant impact later in fighting relocation.

In a divorce, each parent’s intentions for the future should be established, particularly whether they have any intention of relocating. If it is established that the best interests of the children to remain in a certain school district as part of an initial divorce order, relocation may be significantly impaired in the future. Such restrictions must be considered in any divorce decree because a failure to address this issue may leave a parent exposed to potential relocation.

That presumption may change, however, if the parents share physical custody. In such cases, the presumption that exists is often to deny the relocation. Again, presenting evidence that the relocation is in the child’s best interest and that it will not interfere substantially with the nonmoving parent’s relationship to his or her child may rebut that presumption.

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