A divorce may end a marriage but it does not always result in complete freedom from an ex-spouse, particularly if the couple had children together. For example, after a divorce has been finalized and a custody arrangement has been agreed upon, one spouse may decide to move out of state. The decision can come for any number of valid and important reasons such as a better job or to be closer to extended family. However, if the parent wishes to move children out of state when the other parent remains in state and objects to the move then the custodial parent must bring the issue before a court and let the court decide whether the move should take place.
Each state has its own statutes and / or common law concerning when a custodial parent can move a child out of state. Those laws provide different guidelines to judges who are making the decision about whether a child should move with the parent. While the details of the laws vary from state to state, the main issues remain the same and they include:
· The Type of Custody Arrangement that Exists: the court will consider the child’s custody arrangements. If there is shared physical custody of a child then it may be more difficult for one parent to move a child out of state. However, if only one parent has physical custody and the other parent has limited visitation rights then a court may be more willing to allow an out of state move.
· Balancing an adult’s freedom to move with the child’s relationship with the other parent: The court has an obligation to make decisions that are in the child’s best interest. While the parent’s rights are not insignificant, it is the child’s relationship with both parents that is of paramount concern to the court.
· How The Effect of the Move on the Child Parent Relationship Can be Mitigated: the court may consider the practical effect of the move on the parent child relationship and how any negative effects may be minimized. For example, the court will consider the proximity of the out of state move. A move from New York City to a New Jersey suburb may be granted, for example, whereas a move from New York City to San Francisco may be denied. That is because the moving parent can make the child available for regular visitation or custody sharing arrangements from the New Jersey location but not from California. The court may also consider how often visits will take place, at whose expense the visits will take place and other plans for regular communication between the child and the parent.
· Special considerations: A court will also consider any special needs of the parent or child in making its determination. If the parent or the child needs special medical care, for example, or if the move is for temporary treatment for a disability then the court may be more willing to allow the child to be taken out of state.
· Age and Preference of child: Older children, particularly teenagers, can make their preferences known to the court and those preferences may be influential in the court’s decision.
The primary responsibility of the Court is to consider what is in the child’s best interest. While the parents’ desires and reasons for supporting or opposing an out of state move are not inconsequential, they are also not the primary issue. Therefore, any parent who wishes to move a child out of state without the agreement of the other parent should be prepared to argue that it is in the child’s best interest considering the guidelines outlined above.
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