The United States is a mobile society. People move for work, to be closer to other family members, or to simply start a new life. As you can imagine, the desire of one parent to move can be troublesome when it comes to child custody. Having children results in a loss of freedom in general, and the ability to move is a freedom that may be affected even after a divorce. The battles that ensue when a parent with custody moves away with the children are some of the fiercest in family law.
When couples fight about a move, both sides argue that their position is based on the best interests of the child. The parent wanting the move usually says that a job opportunity available elsewhere will enhance the child’s life. The parent staying put says that the children are best off staying where they can have two involved parents.
The legal waters regarding the rights of custodial parents to move are murky. It has traditionally been the case that the custodial parent has broad discretion to make decisions for children including where they will live. What was best for that parent was thought to be best for the child.
A recent California Supreme Court decision in a move-away case resulted in a mother’s loss of her children because she moved. This doesn’t mean that all, or even most, custodial parents would be prevented from moving, but such a decision in California is likely to have effects in other states.
The California decision gave judges broader discretion to make decisions for divorced families. The factors that a judge may include when considering a voluntary move include the stability and continuity in the custody arrangement, the relationships of both parents with the children and with each other, the distance of and reasons for the move, and the children’s wishes. One net effect of the decision may be that parents are discouraged from even trying to move. Although we recognize the argument that a custodial parent should have a right to live where he or she pleases, in general we feel that when the best interests of the child are honestly considered, it is best for the parents to stay in a location where they can both be regularly and continuously involved with their children.
If you feel that you might need or want to move at some point in time, you can help ensure your right to do so by being a good parent and fostering your child’s relationship with the other parent. Attempts to interfere with that relationship can have negative effects in court. If you are concerned about your spouse moving, you can add provisions into your agreement requiring him or her to provide you with ample notification, so that you can work out a new parenting plan, or even take the matter to court if necessary. You can also agree to limit the timing of such moves so that they don’t occur in the middle of school years. Ultimately, your agreement may be overridden by a judge, but only if one of you forces the issue. Because the courts can intervene in the case of a move, and may even be required to at least approve the move, it is usually inadvisable to block an agreement just because you cannot agree about provisions relating to moving.
