Guide To Relocating Children
Divorced parents wishing to relocate with their children face a maze of differing statutes and case law concerning such relocations, according to research by the American Academy of Matrimonial Lawyers.
While recent publicized court cases in New York and California have supported a trend toward more liberal relocation policies for custodial parents, not only are there still differing and shifting standards in use by states and their courts, but there is even fundamental disagreement about what is in the best interests of the child in relocation cases.
"The fact that there are more than 1 million divorces each year combined with a very mobile society has made relocation one of the most important and difficult areas of family law in the 1990s," says Michael Ostrow, president of the Academy.
The issue is further complicated by the increasing popularity of settlement agreements in which restrictions are placed on relocation.
The Academy is currently in the process of drafting a relocation statute, which it is expected to complete this year and which can be used by the courts and state legislatures in developing relocation laws.
Virtually all courts use some version of "the best interests of the child" in ruling in relocation matters. But there is wide disparity in how this standard is applied and what the best interests of the child really are. For instance, there is significant disagreement among social scientists whether it is most important for a child to have two parents in their life on a frequent and continuing basis or whether the stability and happiness of the custodial parent's relationship is paramount.
Among the various standards being used:
- Some states place the burden of proof on the relocating parent 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 a move, while others stress that there needs to be shown a "real advantage" for a move. Some courts use a combination and then conduct a balancing test among the competing claims.
- Notification requirements and specific legal steps following notification also vary. For instance, how much notice should be given and how far does one have to move for it to be considered a relocation?
One further concern is that recent liberalization of relocation rulings in certain states could significantly increase an already heavy domestic court caseload as previous relocation decisions and custody arrangements are relitigated. It has been estimated that 40 percent of all children growing up in America in the 1990s will experience parental divorce. Fair and equitable standards for relocation are critical to the best interests of those children.
For those custodial parents wishing to relocate with their children, Academy members say that generally it is necessary to demonstrate at least some of the following:
The primary reason for the move is not to frustrate the ability of the non-custodial parent to have access to the child.
- Visitation after the move will be possible both financially and logistically.
- The parent wishing to move has made good faith attempts to negotiate an agreement to move with the non-custodial parent.
- The non-custodial parent has been uninvolved with the child.
- There is a compelling reason for the move, such as new employment in a unique position after a careful search of every nearby locale.
- 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.
The child wishes to move to the location.
In successfully preventing a move, the non-custodial parent generally needs to demonstrate at least some of the following:
The custodial parent has a history of attempting to frustrate the ability of the non-custodial parent to have access to the child. Visitation after the move will be difficult if not impossible, either financially or logistically.
- 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.
- The non-custodial parent has been involved with many of the child's activities and has regularly exercised visitation rights.
- There is no compelling reason for the move.
- There are advantages for the child in the current location that will not be available after the move.
