Custodial Parent

There can be any number of reasons for a custodial parent wanting to relocate (also called a move-away). A parent might be searching for a better job, gravitating toward more favorable childcare options, or just moving closer to family. Health concerns, a new marriage and increasing the physical distance between custodial and non-custodial parents are all reasons that have been set forth in modification requests to the court.

• Significant changes that affect the non-custodial parent's right to frequent and regular contact with his or her child can trigger a re-working of the original custody order.
• When a custodial parent does not take the non-custodial parent's rights seriously (as in, moving without first disclosing the move), such disregard can trigger all sorts of negative consequences-including criminal charges or loss of custody, in extreme cases.
• What's in "the best interest of the child" is that both parents be involved early on in planning any move, including collaboration on a new parenting plan.

Whatever the motivation, the custodial parent's interests are almost always pitted against the non-custodial parent's powerful desire to maintain frequent, regular contact with the child. Before calling the movers, a custodial parent should check his or her divorce papers and the language in them concerning a move-away: Is it specifically precluded? Is it allowed? Is it geographically or otherwise restricted? Or is such a provision missing from the divorce documents altogether? The child-parent relationship is so heavily protected by courts that a parent's rights may be diminished in the best interest of the child, which may take the co-parent's rights into consideration.

So will there be a change in the custody agreement? The answer is a definite "maybe." You see, if the relocation distance is relatively short, a court might find an insufficient material change in circumstance to warrant a modification to an existing custody and visitation order. A cross-town move may, for example, make visitation exchanges more difficult, but it may still be practical to comply with the existing order.

When a New Order Is in Order

If the relocation is a significant distance (e.g., cross-country or abroad), a sufficient change in circumstance exists, which inevitably triggers a re-visit to the custody agreement or order. Courts, although reluctant to allow changes, have to ultimately base any decision on what will best meet the interests of the child. Fundamentally, the court will consider the reasons for moving and how the move will affect the child's relationship with the non-custodial parent. The court will weigh:

• The existing custody and visitation arrangement
• The attachment and support of the non-custodial parent and other relatives
• The child's ties to the community, school, church or synagogue, and friends
• The child's wishes, which may take the child's age into consideration
• The geographic distance between the two homes
• The child's special needs (e.g., medical or educational)
• Any other fact the judge decides is relevant

A custodial parent can usually relocate for any valid reason, provided the move does not bring harm to the child. Beyond that, the court's chief concern is that a move should not interfere with continuing and frequent contact between the child and both parents. Given the difficulties of long-distance parenting, a court's modified order accommodating relocation might contain one or more of the following conditions: (1) It may provide that additional time with the non-custodial parent be given during summer and other school recesses. (2) It may require the custodial parent to pay the additional transportation expenses for visitation exchanges. (3) Where the move is deemed potentially harmful to the child, or is viewed as an attempt to sabotage the noncustodial parent's relationship with the child, a court might go so far as to switch custody to the original non-custodial parent. The last option is available in a limited number of states and used only in extreme cases.

Most states clearly spell out how its family courts decide if a custodial parent may move with a child. Some states routinely require the custodial parent to inform the non-custodial parent of his or her intentions before any such move. Yet other family courts will issue restraining orders unless they have given permission for such a move. Still others require the non-custodial parent to agree to the move before a custodial parent may move. If the state's rules are not followed, or blatantly ignored, the parent often faces losing custody or facing criminal charges. If you are considering such a move, carefully consider and address as early in the planning process as possible the rights of the non-custodial parent. Try to peacefully collaborate on a new parenting plan.

On Your Own (Outside the Court System)

It's the responsibility of both parents to work out and maintain a custodial arrangement to maximize the benefits to the child. Whatever changes need to be accommodated, amicably working toward them will save time. To help create an amicable-or at least non-contentious-situation, there is a simple thing parents can do to aid courts and mediators with their important decisions. Each parent should create a list of his or her involvement with the child. It should include all community, school, and after-school activities, for example, in which the parent plays a roll. From Den Mother to chauffeur, it's all worth bringing up to give the court an informed perspective of your relationship with your child.

Bear in mind, depending upon the state in which you reside, it is generally much easier for family courts to grant the custodial parent's requests. Non-custodial parents may have to present a more thoughtful case, but they are not powerless. If they keep thorough records, they can often defeat a move-away petition. They might convince the court to prevent the custodial parent from moving or even have custody shifted to the non-custodial parent. (Either of these orders would require the non-custodial party to petition or file a motion with the court.)

Whether you are the custodial or non-custodial parent, try especially hard to get along for the period of time it takes to restructure the visitation for such move-aways. Set aside the warfare. After all, the parents are most knowledgeable about their child's best interests. If you and your ex are at loggerheads over a revised schedule, try negotiation or mediation (often offered at no or low cost through family court services) rather than rushing to the court or the judge. Neither wants to see you.

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