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Relocating with kids after divorce

Dear Clients and Friends,

How hard would it be for you, as a divorced parent, to relocate with your children?

In some states, a parent with custody must give the other parent (whether that parent has shared custody or not) written notice of his or her plans. If the other parent objects, a family court will decide the issue. Elsewhere, the parent seeking to relocate has to petition the court directly for its blessing.

In most states, a court looks at the specific facts of each case and makes a decision based on what it views as being in the best interest of the child. In certain states, however, the court works under a presumption that a move is not in the child’s best interest, in which case the parent seeking to relocate has to convince the court that the move will significantly improve the quality of life for the child. And some states use a two-step approach, in which the parent first has to show they are moving for good reason, then the other parent (assuming they object to the move) has to show that the move would cause the child harm.

In determining whether a move is the right thing for the child, a court can look at a variety of things, including the nature of the child’s relationship with each parent, the location of other important people in the child’s life, whether the move appears to be an attempt to alienate the child from the other parent, how old the child is and his/her individual needs, comparative resources and opportunities in each location, and the child’s preference, depending on his or her age or maturity. You may even see a court appoint a “guardian ad litem,” a psychologist, attorney or other professional specially equipped to investigate the situation and, acting on the child’s behalf, make a recommendation to the court.

These situations can be complicated, as a couple of recent cases show. For example, a divorced mother in Rhode Island recently sought to move with her children, who were five and seven at the time, to Ohio, where her own family lived. During the marriage, the father, a doctor, was the sole breadwinner while the mother was the primary caregiver. When they divorced, they were given joint legal custody, though the mother had primary physical custody. A family court judge denied the mother’s request, focusing heavily on the kids’ relationship with their father and his own parents, who lived nearby.

On appeal, the mother argued that the family court wrongly disregarded the better housing and employment opportunities available for her in Ohio, the short time the children actually lived in Rhode Island before their parents divorced, how much more she had been involved in the children’s upbringing than her ex-husband had and the support network she had available in Ohio.

But the Rhode Island Supreme Court disagreed, finding that the mother had not proven that her employment opportunities and the kids’ emotional well-being would be significantly better in Ohio. The court also pointed out that the father’s family, which lived nearby, provided the kids a strong support network, too.

On the other hand, Massachusetts’ highest court recently ruled that a divorcing mother could take her daughter to her native Germany. The couple had met and married overseas and the mother had only briefly lived in the U.S. at the time of the divorce. Meanwhile, the child had already spent significant time in Germany, while the father, who was American, wasn’t making enough money from his job with a nonprofit to meet his child support obligations, and there was no extended support system for the child in Massachusetts. Additionally, though the child had a loving relationship with her father, he was frequently away for work and missed visitations that he did not attempt to make up. Accordingly, the court upheld a trial judge’s ruling that it was in the child’s best interest to relocate with her mother.

These cases can be very fact-dependent. If you are thinking of relocating (or your ex wants to move away with your child) we continue to provide a free phone evaluation of your matter. This includes our advising you on your chances of success, your alternative handling options and an estimate of the fees and costs you might expect to incur in going forward.

Looking froward to hearing from you.



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