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When you and your partner decided to separate, there were a lot of things to consider. Above all the other issues that include your home, your vacation home and your cars there is nothing more emotionally and legally complex than determining what is best for your children especially if it requires a move out of state.
We all know that your kids need stability, and of course, you want to be able to be with them in your parenting time to the greatest extent possible given your work schedules and other considerations.
Relocation are considered by divorce practitioners the most thorny and risky of all the issues parents face, especially in today’s world where it is common for people to relocate for work or other reasons and especially with the mass migrations that are occurring during and after our covid19 pandemic.
Can I prevent my former spouse from moving away with the kids?
In most cases, courts will not prevent parents from relocating unless they find that it is not in the best interest of the children. If you share joint legal custody — meaning you both have the right to make major decisions about your child’s upbringing — then your co-parent may be able to block your move or request that the children stay where they are and then you would have to return for visits and/or have the children visit you on vacations, holidays and school breaks. To show the court that it is best for the children to move you must show that their lives will improve in as many ways as possible, from education (their new school), nicer home, more pillars of support such as closer to extended families, aunts uncles and grandparents, and more opportunity for their development.
If they attempt to move to another state, without getting consent from your co-parent, it is possible that they can get an order that requires you to return the children to the Home State that is the state they have been living in consistently for the last six consecutive months or more. You would request that the judge order that the Children stay put until a relocation hearing is held. If your co-parent fails to follow the Court order, many sanctions can be made on the parent depending upon what the orders were and how much the children and the co-parent is affected. Doing something like acting without an order from the court or without notice to the other parent can be used against you when fashioning a new parenting time plan, and it might take away existing rights you already have.
Here are the most important factors that the judge will consider in deciding if the kids should stay or go to then new state.
- The age of the child(ren)
- How close (“the bond”) the parent was to the child(ren) before the move
- The impact on the child(ren)’s life if they do not move
- Whether or not one parent has primary residential care of the child(ren)
- The involvement of the Child(ren) in local sports, after school activities, the school in general, a job if they are working age and special programs that cannot be found in the new state
- Existing relationship of the Child(ren) to their friends, social clubs, and churches
- Local relationships with extended family that live in the home state and those bonds that will be affected
You’ll either need to negotiate a new parenting plan that allows for the long-distance situation or petition the court for sole custody of the children. If they’re old enough, their wishes might also come into play in determining which parent gets primary custody, or whether they want to live with one parent full-time and visit the other during vacations and holidays.
What if I want to move out of state?
If you’re the custodial parent, or if you share parenting time and legal decision-making and now have a good reason to move out of state after divorce, your co-parent will have an opportunity to object. If your soon-to-be ex objects, it will be up to a judge to decide whether moving is in the best interest of the child(ren).
If you have joint legal decision-making – meaning both parents make major decisions about their children and what used to be called “joint custody” — a move-away is more challenging than if the moving parent has sole legal decision-making or “sole custody”. There are two ways to handle this. First, both parents can agree on the move and fashion, through their own private negotiating, a new parenting plan that includes additional vacation and holiday time for the noncustodial parent. Second, one parent can petition the court for permission to relocate and then take the case to trial for the judge to make the ruling and determine what is in the children’s best interests.
When a co-parent wants to move out of state with the child(ren), it can be an emotional and complicated situation. However, if you follow the right procedure, you can work out an arrangement that works for both parents and the best interest of the child(ren).
McMurdie Law & Mediation, divorce lawyer Phoenix, is dedicated to helping develop resolutions that are equitable to all parties and focused on the best interests of the children. Call McMurdie Law & Mediation at 480-777-5500 today to schedule a consultation.