In my opinion, one of the most difficult issues in family court cases is out-of- state moves. Let’s say that following a divorce, Mom has primary physical custody of the children, but Dad has liberal parenting time. Mom is offered a job out-of- state, or, perhaps her current employer is requiring her to transfer out-of- state. For the sake of her career, she’d like to make the move, but such a move will necessarily impact the children’s relationship with their father. What can, or should, Mom do?
For starters, there are many misperceptions out there regarding what Mom can do simply because she may have “sole physical custody.” People mistakenly believe that because Mom has physical custody, she can simply move if she wants to. Dad is just out of luck. But that’s not the law. Rather, under the law, because Dad has parenting time, Mom must either get his permission, or the Court’s permission, before she can move out-of-state with the children.
The law on this topic has evolved over the years. Up until about 10 years ago, it was presumed that the custodial parent could move out-of- state. The courts did not want to get in the way of such decisions made by the custodial parent. The burden was on the non-custodial parent to stop the move and demonstrate that the proposed move was not in the best interests of the child. Only if they could make that showing would the move be denied by the Court.
But, about 10 years ago the law changed. Now the burden is on the custodial parent to affirmatively demonstrate that the proposed move is in the best interests of the child. That might sound like a lot of legal mumble-jumble. The net effect of the law change was that it became more difficult for the custodial parent to move out-of- state with the children. At least in theory. In determining whether the proposed move is in the best interests of the child, the Court looks at eight different statutory facts, which can be found at subdivision three of this statute.
The law is different, though, if there has been domestic abuse. In that case, the burden of proof is on the parent opposing the move. There is usually no easy answer to this issue. In most cases, the party requesting to move out-of- state has a legitimate reason for wanting to move out-of- state. That is, they are not doing so in order to interfere with the other parent’s relationship with the other parent. But, kids can only be in one place at a time. Is it fair to them to adversely impact their relationship with the other parent because the custodial parent wants to move out-of- state?
Of course, these decisions are made on a case-by- case basis and are fact dependent. Whether or not the Court would grant a request to move out-of- state would depend on its analysis of the factors cited above.
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