If You Get Divorced in Georgia Can You Move to a Different State With Your Kids?

by Beverly Bird

Before 2003, Georgia was one of the more lenient states when allowing a custodial parent to move away or relocate with her children post-divorce. The courts put the burden of proof on the non-custodial parent to convince a judge that such a move would actually be harmful to the children, and this could be difficult to establish. The Georgia Supreme Court reversed this position in the case of Bodne v. Bodne in 2003. At the time of publication, the custodial parent has the burden of proof to establish that a move would improve the children’s lives more than the separation from their other parent would harm them.

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Legal Requirements

When a parent wants to relocate to another state and take her children with her post-divorce, Georgia law requires her to give the other parent 30 days’ notice. The notice must be in writing. This is true whether she is the primary custodial parent or if parents share a joint custody arrangement. When the other parent receives notice, Georgia law permits him to object. He can do this by filing a petition with the court to block the move.

Effect on Custody

Georgia treats an objection to relocation as a request for modification of the custodial arrangement in the divorce decree. The court can’t tell a parent she can’t move. However, if she’s the custodial parent, a judge can change primary custody from her to the other parent so the children don’t move with her. Following the Bodne decision, the court will review the relocating parent’s reasons for wanting to move against the children's best interests. If the judge finds that it’s in the children’s best interests not to move, he’ll change custody to the parent remaining behind.

Child’s Preference

Section 19-9-3 (a) (5) of the Official Code of Georgia Annotated gives considerable weight to a child’s preference in custody matters. When a child reaches the age of 14, he has the right to select the parent he wants to live with. Although a judge doesn’t absolutely have to abide by his wishes, especially if the parent he chooses is unfit, his right to choose would probably be the determining factor as to whether he moves with one parent or stays behind with the other. Children between the ages of 11 and 13 can also make their wishes known to a judge, but their preference is less controlling than that of an older child. When a teenager is involved, the decision could come down to what he wants, not what his parents want.

Ne Exeat Clauses

At the time of publication, it’s becoming increasingly common for new divorce decrees and custody orders to include "ne exeat" clauses. These clauses state specifically that a parent cannot relocate or move away with her children without the express permission of the other parent. They conform to the law requiring a 30-day notice. However, even if your divorce decree is several years old and it does not contain such language, this doesn’t mean your ex doesn't have the right to file a petition with the court to block your move. If you’ve got an older decree and it does not include a ne exeat clause, consult with an attorney to find out your rights.