Written by attorney David R Cardamone

Attempts to Relocate by Custodial Parent, Inter- and Intra- State Moves

After parents are divorced, a custodial and parenting time agreement is reached. In some cases, the non-custodial, or parent of alternate residence, may have limited parenting time with his or her children, i.e. every other weekend with one midweek dinner visit, etc. In other instances, the non-custodial parent may actually have a true shared parenting arrangement, whereby they enjoy parenting time nearly 50% of the time. In either case, when the custodial parent proposes to relocate a significant distance away from the non-custodial parent, the impact on the custodial and parenting time arrangement can be stark.

While many people may believe that a custodial parent has the right to relocate with their children, the reality is the law places restrictions on this right. Of course, the custodial parent may relocate at any time if they relinquish primary custody of the children; however, when they wish to retain custody, they must obtain approval either from the non-custodial parent or the court to move out of state and, in situations where the proposed relocation involves a significant distance intrastate, the non-custodial parent may still have the right to object to and restrain the custodial parent’s proposed relocation.

Whenever there is a true shared parenting arrangement, the Court, whether the proposed move is interstate or intrastate, is governed by the best interests of the child standard. When the custodial arrangement is not shared, the Court can still find a basis for rejecting the proposed relocation.

Although attempting to relocate intrastate does not constitute a removal action, pursuant to the Court’s holding in Shulze v. Morris, it “may constitute a substantial change in circumstances warranting modification of the custodial and parenting-time arrangement." Although approval is not needed, a party can oppose the intrastate relocation based upon a belief “that the move will be deleterious to the relationship between the child and the non-residential custodial parent, or will be otherwise inimical to the child’s best interests," at which time “those factors outlined…in Baures…, as well as other relevant matters, should be considered in determining whether modification of the custodial and parenting-time arrangement is warranted."

One may note that the above cited case law discusses factors from a different case, Baures v. Lewis. More specifically, the factors in Baures are applied in interstate moves to determine whether a proposed relocation to another state should be permitted by the Court over a noncustodial parent’s objection. These factors are:

(1) the reasons given for the move; (2) the reasons given for the opposition; (3) the past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move; (4) whether the child will receive educational, health and leisure opportunities at least equal to what is available here; (5) any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location; (6) whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child; (7) the likelihood that the custodial parent will continue to foster the child's relationship with the noncustodial parent if the move is allowed; (8) the effect of the move on extended family relationships here and in the new location; (9) if the child is of age, his or her preference; (10) whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent; (11) whether the noncustodial parent has the ability to relocate; (12) any other factor bearing on the child's interest.

Whenever a custodial parent is proposing a relocation which would significantly alter the noncustodial parent’s visitation and parenting time, it is important to review the case with a highly qualified attorney, as the issue and standards used by the Court are quite intricate and complex. Furthermore, in many instances, it is imperative that the noncustodial parent acts swiftly, as one may need to restrain the other parent from moving and/or buying a new house and/or leasing a new residence by way of emergent application.

If you or someone you knows finds themselves in this situation, please refer them to me to discuss their options and rights in more specific detail.

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