Parents aren't always equal under the law. In many divorce cases, courts name one parent as the primary custodian of the children and grant the other parent visitation rights. When the custodial parent wants to relocate with the children, this necessarily affects the other parent’s visitation schedule if the move involves some geographical distance. When a non-custodial father is faced with such a situation, he has the right to object and get the court involved. However, judges’ positions regarding relocation issues vary widely from state to state.
No state allows a custodial parent to unilaterally pack up and move away with the children without notice. A custodial mother must usually have either the father’s written consent to the move or, if the father does not consent, then permission from the court. In Colorado, the moving parent must give notice to both the other parent and to the court if she wants to move. She must include a proposed parenting plan for adjusted visitation time with the non-custodial parent after the move. The laws in Texas and Washington require at least 60 days' notice to allow the non-custodial parent ample time to exercise his right to object.
When a non-custodial father exercises his right to object, courts will invariably order a hearing so a judge can decide the issue. Judges have wide discretion with these matters. Some states, such as Colorado, will give relocation issues top priority and list them for a hearing as soon as possible. Others, such as Virginia, allow a non-custodial father to request that the court assign a special attorney to his child to protect the child’s rights regarding the move. Usually, the burden of proof is on the custodial parent to convince the court that the child will benefit from the move -- and that it’s not merely advantageous to her.
Fathers who share equal physical custody or interact with their children almost daily usually fare better than fathers with every-other-weekend visitation. They are more involved with their children’s lives on a day-to-day basis, so abruptly depriving a child of that time with his father would not be in the child's best interest. Some states, such as New Jersey, apply a whole different set of criteria to relocation issues when joint physical custody is involved. New Jersey courts will sometimes change custody to the parent who does not want to move if it is determined to be in the best interest of the child. In any state, when a father is the custodial parent and the mother wants to relocate, the courts will allow her to move, but will usually not allow her to take the children with her unless a change of custody is ordered as well.
Both federal and international laws prevent a mother from moving out of state or out of the country with her children without permission. Under the terms of the Uniform Child-Custody Jurisdiction and Enforcement Act, the state the mother left retains jurisdiction over custody issues for at least six months after she leaves. The court in her home state can force her to return with the children until the issue of relocation can be decided there. Countries that adhere to the terms of the Hague convention will return the child to the United States if a mother relocates to one of them.
References & Resources
- Colorado Divorce and Family Law Guide: Relocation of Children
- Wendy Wood: Parental Relocation and Moveaway
- Thyden, Gross & Callahan: Father’s Rights – Not Just Every Other Weekend
- DuBois Carey Law Group: Parental Relocation and International Moves
- Pellettieri, Rabstein & Altman: Can you Remove Your Child From New Jersey After Divorce?
- U.S. Department of Justice: The Uniform Child-Custody Jurisdiction and Enforcement Act (PDF)
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