Many parents ask “Can I relocate?” and the answer always depends on the individual circumstances at the time. Given our increasingly mobile society, it is not at all unusual for one spouse to need to move out of state, or even out of the country.  Increasingly, the courts are trying to determine whether it is in the child’s best interest to move, even if the child has lived with a primary physical custodial parent for quite some time. Click here for an article about relocating after divorce.  

The court will consider all of the factors that have gone into the original custody decree, as well as the reason for the move, the ability of the child to maintain contact with the other parent, what kind of visitation would be set up for the parent left behind (as well as extended family), and the living situation for the child in the new city or state.

If you anticipate a relocation you should probably deal with it as part of your divorce up front.  If you think that maybe some day you might want to relocate, putting a notice provision with respect to relocation into your settlement agreement is important. Many such provisions call for 90  to 180 days notice before someone can move. Sample relocation clauses are included in the appendix.  This notice enables time to negotiate or motion the court to prevent the move while it is being worked out by the parents.  Relocation is not a good bargaining chip, as it evokes a sense of threat, and often pushes the other person to become more intransigent and stubborn out of fear of losing contact with the children. Click here for another great article on relocation after divorce.  

In most jurisdictions it will be up to you to prove that moving out of state is in the children’s best interests. While you may have many reasons why it’s in your best interests to move, is it really in the children’s best interests?  How will they maintain contact with the other parent?  How involved are they in their school and school activities?  Will close friends and extended family be left behind?  How well does your child adjust to new situations? 

The legal custody designation (i.e. joint legal custody) has little to do with whether or not you will be permitted to move. The actual circumstances of your case will be the determining factor.  The more involved the other parent has been in the children’s lives, the more difficult it will be for you to prove that it is in the children’s best interests to move far away from them. Therefore, having sole legal custody doesn’t automatically permit you to move with the children, and having joint legal custody doesn’t automatically prevent you from moving with the children.  Sometimes the court will say, “Sure you can leave, but your children will stay with their other parent.” This has happened even when the children have always lived with the leaving parent. 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

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