The legal dilemma of relocating after a divorce

Divorce, Family/Kids, Relationships

(Note: This post has been updated since original publication)

Divorced couples dealing with shared child custody have to make hard decisions. Take moving, for example. You may have an excellent reason for wanting to do so. Perhaps you or your new spouse has landed a fantastic job in another city, or you want to live closer to extended family, to provide or receive support. It may be the best thing for everyone, including the kids…but what if your ex doesn’t agree?

If your ex has a court-ordered right to a certain amount of parenting time with your child, and a move means you can’t keep up the current every-other-weekend visitation, moving means you’re risking a legal battle. Such is the dilemma facing parents living with a custody order.

Check your custody order

Sixteen percent of Americans move every year, and according to the U.S. Census Bureau, divorced parents are among the most mobile of family groups. These facts have made relocation such a common problem that many custody orders have a provision covering it. Often it allows the parent with residential custody to move within a certain radius. If you wish to relocate beyond those defined limits, the provision may state that both parents must consent before you move.

Why relocation is so hard

Relocation is challenging for everyone. You’re making a tough call based on what you see as the overall best choice for your family. However, separating your child from their other parent can be hard for both the youngster and your ex. Because of this, many divorced parents find it impossible to come to an agreement about relocation and turn to family court to make the decision.

Working out a compromise

The court will urge you and your ex to reach a compromise before your case is scheduled for a hearing. Take the opportunity to sit down and work out a solution together. In exchange for your ex agreeing to your move, you could agree that:

  • Your child will spend extended periods of time with the other parent over school breaks and long weekends, including a month or more in the summer.
  • You will make your child available for visits in your new location any time the other parent comes to town.
  • You will accept the expense of flying (or driving) your child to the other parent for scheduled visits.
  • The other parent will have unfettered access to your child via Skype, text, phone, email, and messaging.

What to expect in a hearing

If you and your ex can’t work out an agreement on your own, your case will proceed to a relocation hearing. The court will make a decision based on the best interest of your child. Keep in mind that this is not the same as what is in the best interest of your family, although what happens to the family does impact your child. For example, moving for a better job is definitely better for you, but you need to show that it is in your child’s best interest and will provide a better life, a more stable home, greater opportunities, etc.

Be ready to offer details about why you are moving, where you will live, where your child will go to school, and what kinds of activities, extended family contact, opportunities, and lifestyle your child will have in the new location. Reassure the court that you have no plans to move again and plan to put down permanent roots in this new location so that your child will have a stable home. If you have a child with special needs or a chronic medical problem, moving to be near better schools and medical facilities is a good reason for relocation.

Also come armed with a plan for frequent visits and contact between your child and the other parent and be committed to maintaining their relationship. Focus on showing the court that the move will benefit your child, provide a better life, and will still allow your child to sustain a close relationship with the other parent. In general, courts tend to approve relocation when it is clear the move will benefit the family by providing a better income, more support from extended family, or a healthier and safer environment. A family attorney can help you make sure you haven’t missed any essential information that will help your cause, and can also familiarize you with the details of how your specific state handles relocation issues, as some states have more limitations than others.

The outcome

If you lose, you can move, but you are not permitted to take your child with you, which means you will be left with a difficult choice: move and give up residential custody, or stay and give up the new life you were hoping for. If you win the case, you will be allowed to move with your child and the court will set up a new parenting plan that will establish when your ex will have contact with your child.

Regardless of whether you win or lose, both parties should understand that the court is looking out for the best interest of your child—and isn’t that really what both you and your ex want?