Relocation of Children Is Difficult

Question: In the midst of our contested divorce case, my wife decided that she wanted to move back to the state where she was raised and to take our two children, ages seven and ten, with her. While she says that she can get a better job there, I think this is sheer spite and not a good enough reason to uproot two normal, healthy children. My lawyer says that in the final analysis, the decision is up to the judge, and he seems to think that she does not have a chance. Aren't there rules about these types of things that will give me and my children some predictability?

Answer: It has been estimated that 40 percent of all children growing up in America in the 1990's will experience parental divorce. Fair and equitable standards for relocation are critical to the best interests of those children; however, depending on where you live, divorcing or divorced parents who seek to relocate with their children face a maze of differing legislation and/or case law.

While some state courts support a trend toward more liberal relocation policies, others use differing - and sometimes shifting - standards. This recent liberalization of relocation rulings in some states could severely increase already heavy domestic court caseloads when previous relocation decisions and custody arrangements are relitigated.

Some states place the burden of proof on the relocating parent to show that the move is in the best interests of the child, while other states have a presumption in favor of the relocating parent and place the burden of proof on the non-custodial parents. Some states emphasize motive in considering whether or not to allow a move, while others stress that the parent who wants to relocate must present a "real advantage" for a move. Still other courts use a combination of factors and then conduct a balancing test among the competing claims.

Other factors which vary from state to state include notification requirements and the specific steps which must be taken after notification. Just how much notice should be given of the proposed relocation, and how far does one have to move for it to be considered a relocation?

Generally speaking, custodial parents who wish to relocate with their children must demonstrate at least some of the following: (1) The primary reason for the move is not to frustrate the ability of the non-custodial parent to have access to the child. (2) Visitation after the move will be possible both financially and logistically. (3) The parent wishing to move has made good faith attempts to negotiate an agreement to move with the non-custodial parent. (4) The non-custodial parent has been uninvolved with the child or children. (5) There is a compelling reason for the move, such as new employment in a unique position after a careful search of every nearby locale. (6) There are advantages to the parent and/or child in the new location, such as excellent schools, medical facilities, proximity to extended family and support networks. (7) The child wishes to move to the location.

In order to attempt to successfully prevent a move, the non-custodial parent generally needs to demonstrate at least some of the following: (1) The custodial parent has a history of attempting to frustrate the ability of the non-custodial parent to have access to the child. (2) Visitation after the move will be difficult if not impossible, either financially or logistically. (3) The move is being made without sufficient notice and no attempt has been made to negotiate an agreement for the move with the non-custodial parent. (4) The non-custodial parent has been involved with many of the child's activities and has regularly exercised visitation rights. (5) There is no compelling reason for the move. (6) There are advantages for the child in the current location that will not be available after the move.

Bottom Line: You wife certainly has a chance, and her odds will increase if your case is not prepared adequately.

SoloFact: This is the third of 12 financial pitfalls that should be avoided at divorce. If you miss any of the 12, visit www.flyingsolo.com, click on "Divorce" and then on "Frequently Asked Questions." Pitfall #3: NOT GETTING GOOD PROFESSIONAL ADVICE. When you are getting a divorce, you need all the help you can afford. If you hire an attorney based on a bargain price, nine times out of ten you may wind up getting less than you deserve or paying more than you should. Hire the necessary professionals to help advise you on the settlement and its tax consequences. And if you and your spouse can still talk but can't agree, think about using an arbitrator to help you work out some of the details. You may want to see a good therapist to help you through the emotional crunches that always accompany divorce. But, most importantly, take your time. The divorce process takes time. Be prepared to take as much time as necessary to plan your divorce -- just as you did when you planned your wedding. If you are going to get divorced, use the experience as an opportunity for a new beginning.

Jan Collins is an award-winning writer and editor. Jan Warner is a matrimonial, elder law, and tax attorney. Both are based in Columbia, South Carolina. Flying Solo is distributed nationally by Knight Ridder Tribune News Service.

Please send your questions by email to janwarner@flyingsolo.com or by mail to P.O.Box 11704, Columbia, S.C. 29211.


Posted: August 5, 1999