Once the custodial issues are resolved in divorce litigation, the residential parent has been agreed upon, and a parenting schedule has been negotiated, there remains other custodial issues to be addressed. One such matter is that of relocation. This issue is of particular importance for the non-custodial parent, as it may significantly effect his/her ability to exercise consistent and quality parenting time with the children. Given this, it is imperative that this is addressed during the divorce, and included in any final agreement.
Relocation is generally not an issue raised by the custodial parent, so it is incumbent on the non-custodial parent to do so. Quite simply, an appropriate relocation clause will set forth that the custodial parent is prohibited from relocating beyond a specific radius without the written consent of the non-custodial parent or order of the court. The radius is often agreed to in terms of miles from the current residence of the custodial parent, but may even be designated by county or some other geographic parameter. In any event, it is important for both parties to consider their future living circumstances (ie -where they can afford to reside after the divorce; where they wish to live after the divorce) before agreeing upon a radius. This is because a request to relocate beyond the radius bears a high burden in court, as it may have significant implications on the non-custodial parent’s access to the children (both financial and temporal).
Often times, relocation issues seen in the courts are those involving a custodial parent’s request to relocate a significant distance (maybe even out of state) beyond the agreed upon radius. In these cases, the first caution for the custodial parent is to refrain from relocating outside the radius unless and until you have an agreement or court order to do so. To do otherwise can result in a court ordering the child to return to the State and/or actually changing residential custody (if only during the proceeding).
In order to prevail in court in connection with a relocation request, you must demonstrate that the move will be in the best interest of the child, and that the child’s welfare will be enhanced by the move. While there may be many ways that you can do so, the burden is great, as a court will prioritize the child’s relationship with the non-custodial parent. In this regard, the court will look at the frequency and ease by which the non-custodial parent will have access to the child, and any additional costs associate with parenting time as a result of the move (ie - airfare, hotels and the like). Thus, the proponent of relocation should seek to present evidence of enhancements of the child’s: living situation, social and educational opportunities, and the like. Furthermore, a proponent may present factors such as: significant financial opportunities or the presence of significant familial presence in the desired location. Another caveat for the custodial parent is that courts do not often find that re-marriage alone is a sufficient basis for relocation. In this regard, while it is important for each party to move on with his/her life, the child’s relationship with the biological parent is sacrosanct.