Law & Legal & Attorney Children Law

Child Custody Laws on Relocation

    • Relocation usually requires court order.House For Sale image by TMLP from Fotolia.com

      Once a court has entered a child custody agreement, the custodial parent usually cannot move the child out of state without the court's permission. Each jurisdiction varies on how it determines whether or not a parent can relocate a child, but usually one of three approaches is taken. The court either presumes in favor of relocation, weighs the interests of the child and determines whether relocation is in the child's best interest or remains neutral, requesting both parents to demonstrate why the move is beneficial or detrimental to the child.

    Presumption in Favor of Relocation

    • In many states, such as Arkansas, the court favors allowing relocation of the custodial parent or the parent with primary custody of the child. In these states, the court takes the view that the custodial parent has the right to relocate and is presumably making the best parenting decision. Thus, a burden is placed on the non-custodial parent in these states to prove that the move is not in the best interests of the child.

    Best Interests of the Child

    • The majority of states, such as New York, determine whether relocation should be permitted based on the best interests of the child and the effect the move will have him. In these states, the custodial parent has the burden of proving that the move is in the best interests of the child and that the move is being made in good faith and for a legitimate reason. In determining whether or not the move is in the child's best interest, the court will consider the child's relationship with his non-custodial parent and how the move will affect that relationship, the child's relationship with his community and whether the child will have the same educational, spiritual and recreational activities in the new community, whether the custodial parent is likely to foster, support and encourage a continued relationship with the non-custodial parent, the reasons for the move plus any benefits the child will receive from the move.

    Neutral

    • A few states, such as Connecticut, have a neutral approach that is an intermediate standard between the other two approaches. In these states the court does not have any presumption and both the custodial parent and the non-custodial parent have the burden of demonstrating why relocation should or should not be permitted. First, the custodial parent has the burden of showing that the move is legitimate and being made in good faith. Once the custodial parent has established that before the court, the non-custodial parent then has the burden of showing that the move is not in the child's best interests.

    Other Considerations

    • A few states, such as Texas, also focus on the custodial parent's constitutional right to freely travel and move within the country. In these states, the court recognizes that its decision could potentially infringe on the rights of the custodial parent and thus any decision that requires a parent to stay must be due to a compelling state interest in order to be constitutional. When deciding if a compelling state interest exists, the court balances the parent's constitutional rights against the best interests of the child. However, a minority of states hold a different view. In those states the courts maintain that a parent's right to travel is not infringed as he can still travel, albeit he would have to forfeit custody to do so.

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