The sheer number of Americans who move and relocate each year is staggering. According to data from the American Community Survey (ACS), between 2015 and 2020, over 40 million Americans relocated every year. Census data reveals that an estimated one-quarter of moving Americans are mothers who have custody over their child or children and are moving within four years of a divorce. Whenever the relocation involves a parent who takes their children with them, disputes over custody are a common phenomenon. Relocations that contain a dispute over custody are what is known as relocation custody cases. Relocation custody cases between 1996 and 2006 had significantly increased on trial and on appellate court dockets as parents attempted to move themselves and their children.
How to Prepare for a Successful Relocation Case?
To properly prepare for a successful relocation custody case, it is imperative that lawyers are not only well-versed in the specific state and federal statutes that govern relocation custody but also the procedural steps that must be taken. It is equally important for lawyers to fully understand and appreciate the policy behind the laws on relocation custody, the reason why these laws ultimately intend to protect and serve the best interest of the child, and to be familiar with trends as to how judges normally rule on relocation custody cases.
Fundamental Rights involved in Relocation Custody Cases
It is important to note that relocation cases typically involve two important fundamental rights that are judicially recognized by the Federal Supreme Court. These fundamental rights play a significant role in judicial decision-making regarding relocation custody cases.
The fundamental rights are:
1. The fundamental right of parents to the care, custody, and control of their children.
This right requires courts to employ the “best interest of the child” principle in awarding custody between parents who are undergoing a divorce or have been living separately.
2. The fundamental right of US citizens to travel freely between the states. This is an overarching right that includes not only the right to travel per se but also the right to migrate or resettle in another state, and the right to seek job opportunities and establish a new life in another state.
In contrast to the first fundamental right, this right mandates the courts to temper its decisions in removing custody from a relocating parent simply to due to the very mere fact of his or her decision to relocate, as this will infringe the parent’s right to travel.
Parties involved in a Relocation Custody Case
The parties involved in a relocation custody case are the parents of the affected children. Custody cases would typically involve parents who were former spouses but have been divorced, where the court likely previously issued a custody order or decree in favor of one of the former spouses. In legal parlance, these parties are referred to as either:
- the “Custodial” or “Residential” parent – the parent who has physical custody over the child, and as a consequence, has the right to have the child live with him or her.
- the Non-Custodial or “Non-Residential” parent – the parent who has no right of physical custody over the child, and thus, has no right to have the child live with him or her.
Common Procedures in Relocation Custody Cases
The vast majority of relocation custody cases take place after an initial custody order has been decreed in another civil case, such as a divorce proceeding or in domestic violence cases.
A relocation custody case is usually initiated through a motion or a relocation request filed by the custodial parent with the proper court which seeks permission to relocate. However, the filing of a relocation request does not necessarily result in the non-custodial parent being notified and informed of the plan to relocate. Therefore, several states require that a custodial parent file an official notice within the required time period (either stated as “within a reasonable time” or within a specific time period such as 60 days, depending on the state). The official notice must be given to the non-custodial parent and/or to other individuals who have been granted court-ordered access to the children, such as grandparents.
If, after receiving the notice, the non-custodial parent objects to the custodial parent’s plan to relocate, the proper court will conduct a hearing. However, if the non-custodial parent does not object in a timely manner despite receiving notice, several state statutes will allow the relocation to occur without a hearing.
When a non-custodial parent objects to or challenges the decision of the custodial parent to relocate and requests for a change in custody, the issue then changes from the relocation to whether the original decree or court decision awarding custody to the custodial parent must be modified or not.
In such cases, the initial burden that a non-custodial parent must overcome is to have the court reopen the case for a hearing to determine whether the child’s original custody should be changed at all. To do so, the non-custodial parent must show that material or substantial change of circumstances has occurred from the time the original decree was promulgated. If the hearing is granted, the non-custodial parent must show that a change in the current custodial arrangements is in the child’s best interest.
An added layer of complexity to the burden on the non-custodial parent is the question of what constitutes a “material or substantial change of circumstances” that will warrant a hearing in the first place. In some states, the very fact that the custodial parent has or is planning to relocate already constitutes “material or substantial change of circumstances” that will justify a hearing. In other states, meanwhile, the plan or the actual act of relocation alone is not enough to be considered a “material or substantial change of circumstances”, especially in jurisdictions where the priority is to favor the emotional stability of the child.
What are the Chances of Winning a Relocation Case?
While laws governing parental relocation do vary from state to state, a strong and common thread among these laws is to generally allow a custodial parent the right to relocate with the child or children, as long as:
- The non-custodial parent is afforded the right to parenting time and visitation arrangements with the child or children; and
- The custodial parent did not decide and undertake the relocation in bad faith or with ill motive.
These principles provide that generally, the odds of winning a child relocation case are in favor of the custodial parent. This is a result of a presumption amongst these laws that the child’s or the children’s welfare and healthy development are heavily reliant on them having a sense of continuous relationship with their custodial parent, who is their primary caretaker.
In most states, there is a presumption that the original custody order should stay in effect in order to encourage stability for the child. Accordingly, their respective laws are generally strict when it comes to modification of original custody decrees. For example:
- In Colorado, before the original custody may be modified in favor of the non-custodial parent, it must be demonstrated that child’s present environment under the custodial parent’s custody endangers his physical, mental, moral, or emotional health.
- In California, case law rules that the non-custodial parent has the burden of showing that the planned move by the custodial parent will cause the child to suffer detriment in order for the court to reevaluate an existing custody order or decree.
- In Arizona, relocation statutes provide a highly comprehensive list of factors (compared to that of other states) that courts must consider when determining whether the non-custodial parent is entitled to custody.
- In other states, while the standards are less strict, a common feature of their relocation laws is to prioritize the custodial parent-child relationship and to deliberately make it difficult for non-custodial parents to successfully challenge original custody decrees.
Nonetheless, Elrod (2008) has observed that, while state statutes and case law provide a multitude of factors to consider in relocation custody cases, trial judges tend to concentrate on three major factors:
1. What are the reasons or motives for and against the relocation? Are these legitimate?
Elrod (2008) observed that most courts are sympathetic to a custodial parent whose reason for moving is that he or she has been transferred by his or her employer, has been promoted, or has obtained a better job opportunity elsewhere. On the other hand, courts are not sympathetic to a custodial parent whose reason for relocation is not clear or is simply to frustrate the non-custodial parent’s right to visitation in the absence of any proof that the non-custodial parent is abusive or violent.
2. Will the move enhance the child’s quality of life?
Many courts grant relocation if it will provide educational, emotional, and/or economic benefits for the child (Elrod, 2008). However, many courts have shifted custody to the non-custodial parent when the supposed quality of life that will be obtained in the new location does not outweigh the adverse impact of the relocation to the child.
3. Will there be a realistic substitute visitation schedule available to the non-custodial parent so that they can continue maintaining a relationship with the child or children?
Elrod (2008) noted that courts will normally grant relocation if the custodial parent was able to show that he or she has carefully considered and drafted plans for visitation that minimize the adverse effects that the relocation will have on the relationship between the child and the non-custodial parent.
Relocation custody cases require lawyers, not only to be knowledgeable of statutes, but also case law. Lawyers who handle relocation custody cases, whether their client is the custodial parent or the non-custodial parent, must also be aware of how courts normally rule such cases and the factors that they consider in doing so. Thus, lawyers, especially those representing non-custodial parents, must approach relocation custody cases holistically if they are to have a chance at a successful outcome.