Moving Out of State and Joint Custody

By Larissa Bodniowycz, J.D.

Moving Out of State and Joint Custody

By Larissa Bodniowycz, J.D.

The aim of custody arrangements is to try to meet a child's best interests. One parent can significantly complicate a joint custody arrangement by moving out of the state in which both resides. As a result, that parent may need court approval to move. If the parents can't agree on a solution, the court will try to determine how to modify the custody arrangement for the benefit of the child.

Man with suitcase hugging little girl while her mother watches

Types of Custody

Custody consists of both legal and physical guardianship. Legal custody is the right to make decisions about a child. Physical custody is the responsibility for looking after and caring for a child in the parent's physical presence. While parents can maintain joint legal custody if one parent moves out of state, it can be difficult or impossible to maintain joint physical custody if one parent wants to relocate a long distance away.

Court Approval

A parent who wants to move with a child or children to another state will most likely need to get approval from the court that issued the original custody order. If two parents have a joint custody arrangement and one parent wants to move out of state without bringing the child, primary custody will likely go to the parent who remains in the first state.

Out-of-State Custody Agreements

An out-of-state custody agreement may designate one parent as the child's sole custodian and grant visitation rights to the out-of-state parent. The court may also pursue alternative methods as part of a new custody arrangement, such as incorporating “virtual visitation," or electronic communication, between the out-of-state parent and child.

If Both Parents Approve

Both parents may agree to the move. If both parents can agree on a new custody arrangement, they can sign a written consent agreement and take it to the judge for court approval. If the amended arrangement is in the child's best interests, the judge will likely approve the agreement and enter a new custody order providing for the out-of-state arrangement.

If the Non-Moving Parent Does Not Approve

If one parent does not consent to the move, the parent seeking to move must go to court and petition the judge for a court order allowing the move. The court will schedule a hearing and allow the non-consenting parent to object to the relocation. The parent petitioning to move will need to be able to show that the move is in the child's best interests.

The court will look at a variety of factors in considering the child's best interests, including the child's wishes (if the child is old enough to express a preference), any special needs the child might have, the child's age, the parents' health, and how the child might adjust to a new school and location. The court will also consider the parent's reasons for moving. If the parent wants to move for economic reasons, such as moving to an area with a better cost of living, for a new job, or to be closer to their family that can help look after the child, the court will likely look at the move more favorably. If the parent solely wants to move to punish or get revenge on the other parent, the court will likely object to the move.

If Court Does Not Approve Move

If the judge does not approve the move, the parent requesting the move can still relocate but cannot take the child with him or her.

If a parent moves a child out of state without court approval and against the other parent's wishes, that parent may face court sanctions, fines, jail time, and an amended custody arrangement that favors the non-moving parent.

Custody arrangements can be complicated, and child custody laws will vary by state. If you plan on moving out of state or if your child's other parent is planning to move, it's recommended that you talk to a family lawyer to make sure you protect your parental rights.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.

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