What if the custodial parent wants to move away from the non-custodial parent?
Where the relocation distance is small, there might not even be a material change in circumstance upon which a parent could move the court to modify an existing custody and visitation order. Since typically a material change of circumstance is required before a court will modify an existing custody or visitation order, a move across town ordinarily is an insufficient basis upon which the existing order would be changed. Although the relocation may make the visitation exchange more difficult, it may remain practical to comply with the existing order, so no change would be made.
Where the relocation distance is great, the case becomes more complex. The primary factor of best interest of the chil
d continues to be considered along with facts such as (1) the existing custody and visitation arrangement, (2) the attachment and support of the non-custodial parent and other relatives, (3) the child's ties to the community, school, church or synagogue, and friends, and (4) the child's desires and wishes
. Only a small minority of states require a custodial parent to get the written consent of the non-custodial parent or a court order based upon a finding of the court that it is in the best interest of the child to allow the move. In many states, a custodial parent can relocate if there is a valid reason for the relocation and the move does not result in harm to the child.
The ability of the child to have continuing and frequent contact with both parents, without a detrimental effect
due to the relocation, is the primary consideration for a court in modifying an existing order to allow the relocation. The modified order of the court could provide additional time with the non-custodial parent during summer and other school recesses and the obligation of the custodial parent to pay the additional transportation expenses
incurred in facilitating the visitation exchange. In California, the impact of a planned long-distance move on a noncustodial parent’s relationship with his children may be considered before the children can be moved out of the state. If the moveaway will detrimentally harm the relationship between a child and a parent, together with other factors, it may be sufficient to justify a change in custody to the other parent.
Custodial parents who move away with the child without providing notice to the other parent may not only face a change in custody to the other parent but also criminal charges of kidnapping. Before any move is entertained, the non-custodial parent should be informed of the impending move and an effort made to reach a mutually acceptable parenting plan based upon the proposed location of both parents.
A relocation by the custodial parent requires careful consideration of the non-custodial parent's rights as early in the planning process as possible. Move-away cases can become very difficult to resolve and court involvement can be both costly and time consuming. Thus, leaving in the dead of the night without leaving a forwarding address could have very detrimental effects to the custodial parent.
Relocation cases . . . Present some of the knottiest and most disturbing problems that our courts are called upon to resolve. In these cases, the interests of a custodial parent who wishes to move away are pitted against those of a noncustodial parent who has a powerful desire to maintain frequent and regular contact with the child. Moreover, the court must weigh the paramount interest of the child, which may or may not be in irreconcilable conflict with those of one or both of the parents.
The joint custody cases will be further broken down into joint legal custody and joint physical custody. Where the child is in joint legal custody, the parents share the legal rights and responsibilities of parenthood, but primary physical custody is with one parent. Joint legal custody differs from sole custody in that the child generally spends more time with the noncustodial parent where joint legal custody is involved. Where the child is in joint physical custody, the child actually alternates substantial residential time between the two parents. Some sources refer to this second type of joint custody as "shared" or "alternating custody." As might be expected, the specifics of all types of joint custody arrangements vary considerably from case to case.
The issue of relocation has undeniable constitutional implications. The United States Supreme Court has recognized that the right of an individual to travel freely throughout the country is protected by the Constitution. E.g., Jones v. Helms, 452 U.S. 412 (1981); Shapiro v. Thompson, 394 U.S. 618 (1969). As the Montana Supreme Court recognized in a relocation case, the fundamental right to travel interstate can be restricted only in furtherance of a compelling state interest. In re Marriage of Cole, 224 Mont. 207, 729 P.2d 1276 (1986) (citing Shapiro v. Thompson, supra).
Some courts have side-stepped the constitutional issue by pointing out that a denial of relocation does not affect the parent's right to travel alone. As the Indiana Court of Appeals explained, "The straightforward answer to [the wife's constitutional] argument is that the court's order does not impose any necessary burden whatever upon her right to travel. She remains free to go wherever she may choose. It is the children who must be returned to Indiana." Clark v. Atkins, 489 N.E.2d 90, 100 (Ind. Ct. App. 1986).
Other courts have decided the constitutional issue head-on. These courts note that if a parent who seeks to travel must pay for that right by giving up custody of the children
--which is itself a constitutionally protected right, see Santosky v. Kramer, 455 U.S. 745 (1982)--the right to travel has indeed been infringed. The inquiry then becomes whether that infringement is justified by a compelling state interest.
Most courts deciding this issue have held, as did the Montana Supreme Court in In re Marriage of Cole, supra, that "furtherance of the best interests of a child, by assuring the maximum oportunities for the love, guidance and support of both natural parents, may constitute a compelling state interest worthy of reasonable interference with the right to travel interstate." 729 P.2d at 1280-81 (1986). Therefore, in relocation cases courts must engage in a "delicate balancing," on the one side the child's best interests, and on the other side the custodial parent's fundamental right to travel, which is "qualified by the special obligations of custody . . . And the competing interests of the noncustodial parent."
. RELOCATION IN SHARED PHYSICAL CUSTODY CASES
In In re Marriage of Johnson, ___ Ill. App. 3d ___, 660 N.E.2d 1373 The Illinois Appellate Court reversed, however, holding that the indirect benefit to the child of the mother's continuing to live with her new husband did not outweigh the direct benefit of a continued close relationship with the father
. The court noted the trial court's finding of the father's "'extraordinary involvement'" in the child's life, and found the 50% reduction in the father's time with the child to be unreasonable.
In In re Marriage of Hoover, 40 Cal. App. 4th 433, 46 Cal. Rptr. 2d 737 the mother had physical custody approximately 60% of the time; the father had custody about 40% of the time. When the mother made plans to move with her new husband to Pennsylvania, where they had accepted employment, the father opposed the move and sought primary physical custody. After finding that the move was economically necessary, that both parties were excellent parents, and that the mother's new husband was an excellent stepfather, the trial court modified custody to give the father primary physical custody with visitation rights to the mother
of at least 100 days a year. In affirming, the California Court of Appeal distinguished prior cases involving relocation by a sole or primary physical custodian. The court noted that "here we have shared physical custody and established patterns of care and emotional bonds with both parents."