When divorced or separated parents have entered into a joint custody arrangement or a custody-and-visitation agreement, the custodial parent cannot move the child to a new state without the permission of the non-custodial parent, or without a court order. Virtually every state in the United States follows this policy, either by statute or by court rule. Sometimes, however, it is necessary and appropriate for a parent to relocate with a child to a new state. Under such circumstances, if the parent cannot obtain consent to relocate, it will be necessary to present the matter to a judge, usually in the form of an evidentiary hearing. During the relocation hearing, the judge will consider witness testimony and other evidence as to why the child should be permitted to relocate to another state. Each state law sets a different standard of proof for relocation cases, and it is crucial to understand this standard before embarking on one of these cases.
At least two major state statutes and two major federal statutes affect all child relocation cases:
- The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). This law is actually a state law adopted by virtually all of the U.S. states and territories. It is a “uniform” state law because it reads the same (or nearly the same) throughout the country. The purpose of the UCCJEA is to determine which state maintains exclusive continuing jurisdiction of child custody cases, an important determination when parents living in two different states are fighting over the same child.
- Uniform Interstate Family Support Act (UIFSA). This is a state law which has been uniformly adopted by all of the states throughout the country. The Act establishes rules and procedures for the establishment, enforcement or modification of child support and spousal support orders, whenever two or more states are involved in the case.
- Parental Kidnapping Prevention Act (PKPA). This federal statute, enacted in 1980, is not a criminal law and does not contain any provisions to punish abductors. Rather, it functions like the Uniform Child Custody Jurisdiction and Enforcement Act, by establishing the grounds for jurisdiction over a child custody matter. The Act gives preference to the “home state” in which the child in which the child resided within the past six months before the filing of a custody action. It further provides that a state cannot modify a child custody decree of another state without complying with the terms of the PKPA.
- Full Faith and Credit for Child Support Orders Act (FFCCSOA). This federal statute requires courts of all states, territories and tribes in the United States to accord full faith and credit to a child support order issued by another state or tribe that properly exercised jurisdiction over the parties and the subject matter. This federal act parallels the state versions of the Uniform Interstate Family Support Act (UIFSA).
The very first consideration in all child relocation cases is which state has jurisdiction over the question. Usually, it is the state where the child has been living with the parent who seeks to relocate to another state. However, this may not always be the case. In some instances, a parent and child may have already relocated to another state, and may have stayed there long enough to vest the jurisdiction of that state. There are also emergency circumstances which arise, from time to time, and from case to case, which may prompt a different state to take jurisdiction over a case on a temporary basis.
The courts will consider a variety of factors in determining whether a parent will be permitted to relocate with the child to another state. These factors vary from state to state, and therefore, it is important that you and your lawyer consider the specific factors which apply in your state and gather the necessary evidence to address each of those factors. Among the most commonly cited factors recognized by various state courts in relocation cases are the following:
- Reasons given for the move
- Reasons given for the opposition
- Past history of dealings between the parties insofar as it bears on reasons advanced by both parties for supporting and opposing the move.
- The extent to which the child will receive educational, health and leisure opportunities in each of the states concerned.
- Any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location.
- Whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child.
- The likelihood that the custodial parent will continue to foster the child’s relationship with the noncustodial parent if the move is allowed.
- The effect of the move on the extended family relationships.
- If the child is of age, his or her preference.
- Whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent.
- Whether the noncustodial parent has the ability to relocate.
- Any other factor bearing on the child’s interest.
- The nature, quality, extent of involvement, and duration of the child’s relationship with the parent or other person proposing to relocate with the child, and with the non-relocating parent, other persons, siblings, half-siblings, and other significant persons in the child’s life.
- The age and developmental stage of the child.
- The likely impact the relocation will have on the child’s physical, educational, and emotional development.
- Whether the relocation will enhance the general quality of life for both the parent or the other person seeking the relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities.
- The current employment and economic circumstances of each parent, and whether the proposed location is necessary to improve those circumstances.
- The extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support and marital property and marital debt obligations.
- Any history of substance abuse by either parent, and the failure or success of any attempts at rehabilitation.
- Any history of domestic violence by either parent.
In some relocation cases, the custodial parent wishes to relocate to another part of the state with the child (rather than leaving the state). In such cases, the court is not likely to be as restrictive, and may, in fact, permit the custodial parent to move with little inquiry or challenge. However, the noncustodial parent still retains a right to object to any relocation that would frustrate his or her access to the child, or which would otherwise disrupt the parenting time schedule or frustrate communications, transportation and other aspects of the co-parenting arrangement.
International relocation of children presents yet another set of legal issues and concerns. While many of the same state laws may apply, once a child is relocated to another country, the noncustodial parent may lose the benefit of the uniform and reciprocal statutes in the United States which deal with such issues as child custody, abduction and child support. When a child is moved over international frontiers, it is therefore important to consider what international treaties, conventions, compacts, and other agreements may apply between the United States and the foreign country to which the child is being relocated.
Mark S. Guralnick is a multi-state and international family law practitioner. He is licensed to practice law in nine U.S. states, in more than one dozen federal courts, and in four foreign countries. He is the author of the book, Interstate Child Custody Litigation, published by the American Bar Association and used by attorneys for more than two decades. If you have any questions concerning the relocation of a child, please feel free to call the Law Offices of Mark S. Guralnick.