When a Custodial Parent Moves Far Away

When a custodial parent decides to move away, the interests of the other parent and the children may be adversely affected.

Harry and Sally, after a reasonably long marriage and an unreasonably bitter and acrimonious divorce, finally resolved the issues of alimony, child support, visitation and so forth. Sally was awarded primary physical custody of little David and Becky, ages 5 and 8, respectively. While Harry was not thrilled with the award of custody, he followed the visitation schedule, not too difficult a task since the parties lived in the same town.

However, Sally has just informed Harry that she and her new husband, Fred, plan to move to New Jersey from Florida with the children because of her new husband's employment. Harry is very much against this proposed move because he believes it will irreparably damage his relationship with the children and break the very tight bonds he has worked so hard to develop. Since the issue of relocation was not addressed by the parties or the court at the time of trial, and the parties obviously cannot agree on how to resolve the conflict, it's back to court!

The above situation is becomingly increasingly more common in family courts throughout the country. Relocation cases are difficult as they balance the custodial parent's constitutional right to move with the noncustodial parent's right to regular and consistent visitation and retaining role in the children's lives, all while considering the best interests of the children, which may or may not be consistent with either of the parent's rights.

Why the increase in "relocation cases"? First and foremost is the increase in the number of divorces, followed by remarriage and the formation of a new family unit, coupled with general greater population mobility.

Some states have found a presumption that the custodial parent may move, some have directed a contrary presumption; some states, including Florida, expressly negate any presumptions. Other states are more creative. Texas, for example, allows the relocation but requires the custodial parent to pay the costs incurred by the other parent in pursuing reasonable visitation. Some states compensate for the distance a parent must travel to be with his or her children by increasing the length of visitation at the original home.

California's statute is briefer than most:

"A parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the Court to restrain a removal that would prejudice the rights or welfare of the child."

So if you are a non-custodial parent faced with the idea that your children are being moved far, far away, or if you are the custodian who wishes to move away, it would be best to consult with an experienced family law attorney to help navigate the issues.

The American Academy of Matrimonial Lawyers (AAML) was founded in 1962 and has chapters and active members in all of the states. The member attorneys are the best in their area of practice, domestic relations law. (One member, Cynthia George of Connecticut has written extensively on the relocation problem and resolution in a state where there is no statute. Her excellent analysis was the inspiration for this article.) The Academy has drafted a number of Model Laws which have been, to varying degrees, adopted by the states. One of these is a Model Relocation Act which offers suggestions for state action, often with alternative provisions to afford flexibility.

The new Florida statute follows the Model Act. Florida Statutes § 61.13001 sets up a very structured procedure, one that places burden and risk to the non-custodial, non-relocating parent; he or she has to pay attention!

If a custodial parent wishes to move more than 50 miles, he or she must serve a formal notice to the other parent, stating "the specific reasons for the proposed relocation of the child" and a "revised post relocation schedule of visitation together with a proposal for the post relocation transportation arrangements necessary to effectuate visitation with the child." The recipient of the Notice then has 30 days to object - or the right to object is lost!

Florida's law, and the Model Act, has some statutory suggestions for the Court to consider in the event the Judge demonstrates a lack of creativity.

"The court may, in its discretion, order contact with the non-relocating parent, including access, visitation, time-sharing, telephone, Internet, web cam, and other arrangements sufficient to ensure that the child has frequent, continuing, and meaningful contact, access, visitation, and time-sharing with the non-relocating parent or other persons, if contact is financially affordable and in the best interest of the child. If applicable, the court shall specify how the transportation costs will be allocated between the parents and other persons entitled to contact, access, visitation, and time-sharing and may adjust the child support award, as appropriate, considering the costs of transportation and the respective net incomes of the parents in accordance with state child support guidelines."

Most states will, today, make orders incorporating some or all of these conditions, even in the absence of statute, but the non-relocating parent has to ask!

There are a number of factors that must be considered by the Court. All are listed in the statutes and reflect reasonable considerations. But, there is a cautionary moral to the story. If a non-custodial parent receives a Notice, he or she had best consult an attorney immediately or suffer the possibility that visitation and contact with children may be lost or, certainly, restricted.