Some parents want to move away after a separation or divorce. A career change, job change, enrollment in school, new partner’s job change, desire to be near a parent who can provide child care, inability to afford to live in the community or desire to just start over are common reasons for wanting to move.

Moving, however, almost always becomes an emotionally charged issue for both parents and children. When children move, they may experience any number of stress-producing events, including:

  • interrupting existing friendships
  • forming new friendships, often after other age-mates have established social circles
  • adjusting to different school curricula and teacher styles
  • coping with either or both parents’ stress or arguments over the move, and
  • having considerably less contact with one parent.

Children who are allowed to remain in their neighborhoods because of a custody modification may be spared a change of schools, friends and contact with extended family members, but they will certainly miss the level of contact they had with their previous custodial parent if that parent moves away.

Regardless of what happens with legal custody (decision making on behalf of your children), the further apart parents live, the more difficult it is for the children to spend significant amounts of time with both parents. Any parent who wants to move should, therefore, examine his or her motives and options carefully.

In general, any proposal by a primary custodial parent to move away will trigger a dispute with the other parent if the move will either reduce the amount of time the other parent spends with the children, or increase the difficulty, time or expense of maintaining the current level of visitation.

If you are thinking about moving, you should be aware that child support might change significantly if the move will change the amount of time your children will spend with each parent. This is because many child support formulas are based not only on what each parent earns, but also the percent of time the children spend with each parent. More often than not, this means that the parent who earns more income or spends less time with the children will end up paying a higher amount of child support.

In the typical dispute, custodial parents want to know whether they are permitted to move under the terms of the existing custody order, and noncustodial parents want to know whether they can either prevent the move or acquire primary physical custody of the children. Unfortunately, a definitive answer is hard to come by, even for experienced attorneys and judges, although the trend is to permit a custodial parent to relocate without changing custody if that parent:

  • has provided significantly more care for the children than the other parent
  • is making a sincere effort to accommodate visitation by the remaining parent, and
  • there are no obvious reasons to conclude that the move will harm the children.

Move-aways have recently become a hotly contested issue in a number of states. The reasons for this are many, of course, but often boil down to the fact that:

  • we live in a highly mobile society
  • local economies often require parents to move in order to find work or advance in their careers
  • requiring parents to surrender custody as a condition of moving away may violate their constitutional right to travel, and
  • it is usually difficult to assess whether a child’s interests will be either better served or compromised as the result of a parent’s move.

The decision as to whether a custodial parent should be able to both relocate and retain custody involves addressing such questions as:

  • Will the move adversely affect the relationship between the children and the noncustodial parent?
  • Will the move adversely affect the relationship between the children and extended family members and friends?
  • Will the move adversely affect the children’s education?
  • What impact would restricting the custodial parent’s right to move have on his or her ability to lead an independent life?

Coming to a decision in the face of these and related issues involves a very delicate balancing act, which is performed in countless courtrooms, mediation sessions, attorney offices and counseling sessions, and few parents ever emerge from the process without feeling completely frustrated both with the process and its results. Some legal trends, however, seem to be emerging as these difficult and controversial decisions take shape.

Certain factors tend to make it easier for a court to approve the move, and others make it easier to prevent the move. When courts approve a move, it is often because the moving parent:

  • has been the primary caretaker
  • previously discussed his or her intent to move with the other parent
  • has never hidden the child or prevented or frustrated the child’s visitation schedule with the other parent (except for instances of child abuse or other violence)
  • is willing to share in transportation costs so that the child can spend as much time as possible with the other parent
  • is willing to allow visitation with the other parent at every reasonable opportunity
  • supports the child in maintaining an ongoing relationship with grandparents, other relatives and close friends, and
  • has not tried to coach the child to convince the judge, mediator, custody evaluator or other professional to approve the move.

When courts prevent a proposed move-away, it is often because the moving parent has engaged in one or more of these behavior patterns:

  • has already tried to restrict or eliminate visits with the other parent by hiding the children or fabricating excuses about why visits cannot take place
  • has tried to coach the children into convincing the judge, mediator, custody evaluator or other professional that they do not want to remain behind
  • is unwilling to find ways to accommodate the other parent’s visits with the children in view of the increased distance between the parents’ homes
  • ignores the wishes of teens who wish to switch custody arrangements in order to remain in familiar surroundings, or
  • wants to move solely for the purpose of getting a fresh start.

Clearly, a move can be one of the most volatile issues parents face as they live with the demands of parenting separately. Accordingly, prevention is the best way to keep this issue from getting out of hand, and saves you the time, expense and emotional cost of financing the next supreme court decision in your state. This holds true whether or not either of you intends to relocate in the future. By taking the time to plan for how you will resolve this issue in the future, how much notice the moving parent must give the other to allow for review or renegotiation of the existing parenting agreement and how you will resolve any disputes that arise, you will do yourself, your children and the other parent a huge favor.

Each of the resolution options described below will highlight a different approach to this complex problem. Among the key elements of this decision you will need to consider when the subject of a proposed move comes up are:

  • your children’s ages and attachments to their school, community, extended family and friends
  • the frequency of your children’s visits with their other parent, and the depth of those relationships
  • the urgency of your need to leave, or need to prevent the other parent from leaving
  • your reasons for leaving, or preventing the other parent from leaving, and
  • whether any other of the related issues (such as child support, which court will have jurisdiction over the issues and enforcement of your orders) may be compromised.

In the event you and the other parent feel that you simply cannot resolve these matters on your own, you should refer back to Issue 12, Resolving Disputes When Making Decisions Together. If a proposed move will mean that your children must spend less time with one parent, refer to Issue 22, If Our Homes Are Far Apart.

 

The information provided here is intended to help
you and the other spouse come to terms with the possibility of one of you moving and to help you negotiate a reasonable agreement covering that issue. If you need to know how a judge would rule in your state, you will have to research this question on your own. (See Chapter 12,
Section A.)

Issue 33 Cross-References

Worksheet            Questions

Worksheet 1 3, 4, 5, 6, 7, 8, 9

Worksheet 2 1, 2, 6, 7, 8, 9, 10

Worksheet 3 1, 3, 4, 6, 7, 8, 9, 10, 12, 14, 15

Worksheet 4 1, 2, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 17, 18

1.  Both Parents Relocate

In some parts of the country, the economy is so depressed that both parents may have to leave following a separation or divorce. Or, if both parents are originally from the same area, both may want to move back to that area after the divorce or separation to take advantage of the support that may be forthcoming from family members or old friends who have remained there.

You and the other parent can consider several options, including relocating together to a city or other area large enough to support you both and let you pursue your own lives. Many parents consider this alternative when they agree that their children need to have frequent contact with both parents, and feel that they might each benefit by making a move.

2.  One Parent Relocates, Physical Custody Changes to Remaining Parent

For some parents, relocation is a necessity if they are to earn a living, gain an education or meet other pressing needs. Children don’t always make the move with their parents, however, even when it is the primary custodial parent who needs to relocate. Some families prefer to raise their children in a particular community, and will alter the physical custody arrangements to ensure that the children can stay in that community as long as one of the parents is able to remain.

3.  Allow a Move as Long as Children Are of a Certain Age

Mental health professionals note that both kindergartners or first graders and teens are particularly vulnerable during a move. This is because the five- to seven-year-old is learning to separate from their parents’ authority and to accept direction from other adults, and teens are increasingly dependent on their peer groups, and may resent losing this support and social resource. Accordingly, some parents choose to either delay or time a move so that they can avoid moving their children during these critical age ranges.

4.  Time a Move With a Change in Schools

Some parents choose to delay a move until children are either ready to start school, or will otherwise be changing schools (for example, moving between elementary and middle school, or between middle school and high school).

5.  Allow Children to Choose Whether They Will Move

Some parents agree that they will allow their children to decide whether they will move with a parent after they have reached a certain age. Many parents decide to allow their children to choose whether they will move with a parent when the child is between the ages of 12 and 15, because that is when their children are either approaching high school, or entering their sophomore year (the one that really starts to count for college applications).

6.  One Parent Relocates

With this option, the parents agree that there is no compelling reason for both parents to either remain in the same area or move to the same new area. You must choose a living arrangement that accommodates the distance between your homes. Issues 15 and 18 suggest options.

7.  Parents Remain and Find New Ways to Meet Their Goals

You may decide that, although you or the other parent might prefer to relocate, the children’s interests would be better served if both parents remain in the area. You’ll need to adopt some creative solutions to address the concerns of the parent who considered moving. Here are a few suggestions:

  • The parent who wanted to move could return to school to gain new job skills to find employment in the area.
  • The parents could alter the living arrangements to allow the parent who wanted to move to “commute” between two cities to work.
  • The parents could alter the living arrangements (and child support payments) so that the parent who wanted to move becomes the primary caretaker for the children.
  1. MovingWe agree that in the event either parent plans to relocate from[describe community, county, state], that parent will provide the other parent with at least  days’ notice in order to allow us to assess the impact that this move will have on our current parenting arrangements, and to renegotiate or modify the agreement accordingly.We agree that neither parent plans to relocate now, but in the event either parent wishes to relocate in the future,

    we will consider the following [choose all that apply]:

    Having both parents relocate.

    Changing physical custody of the children to the remaining parent.

    Allowing a move as long as our children are under age  / over age .

    Time a move with a change in schools.

    Allowing our children to chose whether they will move after age .

    Allowing the parent to relocate as planned.

    Finding new ways to meet both parents’ needs and goals so that both parents can remain in the area.

    We agree that  [parent] will move to

    [specify] on or after  [date], and after that time, our parenting agreement will be as follows:

    It will remain as currently drafted.

    It will change as follows [specify]:

     

     

     

     

    We further agree that [specify]: