Relocation and Custody

By Jean M. Mahserjian, Esq.

It is no surprise that relocation is often an issue in a divorce or post divorce custody case. We live in an incredibly mobile society. Parent's with custody rights have relocation needs for a variety of reasons; that spouse might be transferred by their employer, they might remarry and have a spouse who either lives out of the area or who is transferred, they might only be able to obtain employment in their field if they relocate, and so forth. The custody rights of the other parent, who is either sharing custody or exercising visitation rights, can be impacted in a significant way by the relocation needs of the custodial parent.

When the relocation issue is raised, the custody issue can be resolved in a number of ways. Initially, the parents might be able to work this issue out themselves, without resort to the courtroom. Or, the parents might agree to work with a custody mediator. When the parents cannot agree, the relocation and custody issue will be decided by a judge. This type of custody litigation may require that the court order a psychological evaluation of the parties and conduct a full trial on the custody and relocation issue.

When addressing a relocation case, the parties and court will first assess whether they are confronting a true relocation. A parent who has custody who is moving to an adjoining municipality is not relocation. A mere move, even if it involves a new school district and a greater travel distance for visitation or custodial access, but which does not affect the ongoing custody schedule, is not a relocation that requires legal intervention.

Relocation and custody cases are, in my experience, the most difficult for family court judges and attorneys to handle. There is no easy way to decide if relocation to a far off state will be best for a child. That sort of relocation will necessarily result in a significant impact upon the parent "left behind". The first issue that needs to be confronted is the child's wishes. If the child is older, i.e. a teenager, that child's desire to go or stay can and will be given a significant degree of deference by the court. If the child is younger, i.e. not yet a teenager, that child's desire might be a factor in the court's decision, but it will not be given great weight.

If the parent seeking relocation has a serious and significant reason for the relocation and is not simply attempting to prevent the other parent from having access to the child, the need for relocation will be credited by the court. If, in addition, that parent is the best parent to raise the child, the court will usually allow the relocation. However, if the court is not convinced of the need for the relocation or if the other parent is also an appropriate parent to raise the child, the court might deny a request for relocation of the child.

If the custody court does allow the relocation, it will likely modify the visitation or access schedule in a way that provides the other parent with very significant blocks of time. For example, the parent "left behind" might be awarded an access schedule that includes most of the summer vacation time and a majority of the school vacation periods as well. In addition, if the relocation results in that parent expending significant sums of money on transportation to exercise visitation, that parent might also obtain a concession by reducing their child support.