Relocation can become an issue in divorce situations. For example, where a family consists of a husband, who is originally from California and a mother, who is originally from Texas, and two minor children, an important question may arise: If the couple lived in Texas with their children prior to separation, can the father of the children move back to California without jeopardizing his parental rights?
State law varies. Typically, when one parent moves 100 miles or more away within the same state or even out-of-state, child custody issues can become quite complicated when both parents share custody per court order or an agreement between the parties. By contrast, if one parent was awarded sole custody, and the other parent has only limited visitation rights, the custodial parent clearly is in a better position to convince the court for or against relocation. Either way, state laws typically prohibit one parent to permanently remove and relocate children from their home state without the permission of a court. Other states do not per se require prior court permission; the laws of these states, however, require the parent objecting to the relocation to file a motion to stop the move, which often results in a temporary restraining order hearing.
An important starting point for a court to determine the relocation of children is the final divorce decree. Although courts are free to not enforce relocation language contained in final divorce decrees, the written language addressing relocation will at least serve as a factor since it will reflect the intent of the parties at the time of signing the decree.
Generally speaking, courts are free to consider any factor that will help to effectuate the best interest of the child. That said, each case is different and each family relocation situation is decided on a case-by-case basis. Nonetheless, across the country, courts tend to assess the following arguments:
• Would the relocation harm the children in any way?
• Would the relocation interfere with or jeopardize the current visitation schedule?
• What motives exist to relocate the children?
• What arguments exist to object to and prevent the relocation?
• What is the likelihood that requested relocation will improve the custodial parent’s and the children’s quality of life?
As stated before, ultimately, the parent requesting relocation must prove that the move is in the child’s best interest.
If you want to relocate your family or if you want to fight the relocation of your children, give us a call. The Oberheiden Law Group PLLC has experienced lawyers that can advise you on the likely outcome of your case. All consultations are individually tailored to your specific concerns.