During a divorce, parents are forced to rearrange their lives, and significant changes are often inevitable. Amongst these changes, parents who are divorcing usually make the decision to move because they can no longer afford to live in the same area. They feel the need to live closer to their work or even relocate to an area where they have family that can provide support during this difficult time. Nevertheless, anytime a move is considered and children are involved, the "moving" process becomes much more complicated. When a parent considers moving, the parent must consider whether or not the move is in the best interests of the children, and how the other parent will continue to have frequent and continuing contact with the children.
What does "move away" mean? Any move a parent makes, whether the move is 5 miles or 5000 miles away, that disrupts the current custodial schedule in any way that is detrimental to the relationship of either parent is considered a "move away." This may warrant a new custodial schedule being implemented or even a change of custody. Either the parent wanting to move or the other parent who is opposed to the move must file a Request for Orders with the Court to get permission to move the child, or to get orders preventing the other parent from moving the child.
When dealing with "move away" orders, the Court's priority is always to consider what is in the best interest of the children. The Court also considers the current timeshare and how each parent is exercising their time with the children. The Court's analysis of the situation differs based on whether the parent requesting the move has sole custody, or whether the parties share joint custody of the children.
Sole Custody. If the parent requesting the move has sole custody of the children, that parent has the presumptive right to move. The non-custodial parent has the burden of proving to the Court that the move will be detrimental to the child and/or detrimental to his or her relationship with the child. If the non-custodial parent is able to show that the move will be detrimental to the children, the Court will likely have an evidentiary hearing to reevaluate the current custody schedule to determine if a change in custody is necessary. Otherwise, if no detriment can be shown, the child will likely be allowed to move.
Joint Custody. If the parent requesting the move shares joint custody with the other parent, the Court presumes the move will be detrimental to the children. The Court will then hold an evidentiary hearing to determine what would be in the best interests of the children. The Court will weigh the following factors:
- Distance of the move;
- Reason for the move;
- Children's ages;
- The length of time the current custody order has existed;
- The children's ties and relationships to the current community in which they are living;
- The children's relationships with both parents;
- Whether or not the moving parent will allow the child to have frequent and continuing contact with the other parent; and
- What the child wants, if they are old enough to indicate a preference.
In weighing all of these factors, Courts are often faced with the difficult decision of determining whether or not the move would be in the best interest of the child. Upon a determination of what the Court feels is most beneficial to the children, the Court will either allow the requesting parent to move the child, or the Court will make a change in custody orders as is deemed necessary to protect the well-being of the children. The Court does not make a decision as to whether or not the parent can move, but rather whether or not the parent can move the children with him or her to the new location.