Relocation—Are you or is the other parent of your children planning to move with your children? (ADVANCED ISSUE)

We live in a very transient society, in which people no longer remain residing in the city, county, or even state where they grew up.   Many big companies are opening branch offices in new locations for a variety of reasons and expect their employees to move to those new locations, sometimes hundreds of miles from their current home.  With the increasing ability to work remotely, people sometimes move to places with lower cost of living, better schools for their children or to be closer to family.

If you are divorced already, and there is a parenting plan in place for your minor children, which includes information about relocating the residence of the children. Even if you are contemplating divorce and wish to relocate, you need to be aware of the factors governing relocation.

The two major legal factors in relocation of the children are:  the Relocation Act and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The first applies if you have any kind of custody determination (court order) that gives another party rights to visit the children. This could be contained in dissolution documents, paternity documents, and even in a protection order. 

If you have an order affecting custody/placement of the children, then you must give notice of the relocation of the children to anyone who has rights of visitation/access.  If one party has at least 45% of the residential time with the children, the Relocation Act does not apply, and that party must bring a petition for a major modification. 

A major modification is a higher bar than a relocation, because in a relocation, a party having more than 55% of the residential time with the children has a presumption that s/he may relocate with the children. While this presumption may be rebutted by showing that the harm to the children from relocating outweighs the benefit, it is important to note that the relocation act also considers the benefit to the relocating parent. A major modification, on the other hand, puts the burden on the relocating parent, rather than the non-relocating parent.

Whether or not you have an order affecting custody/visitation, you must consider jurisdiction.  This is true even if the other parent is not on the child’s birth certificate and is not entitled to notice.  

Jurisdiction is governed by the UCCJEA and means the place where the case must be heard.  The parties cannot agree to jurisdiction; it is determined by statute.  Every state except one (Massachusetts) has adopted the UCCJEA.  This statute dictates that a child must reside in a state with a parent or a person acting on a parent for six months for that state to have jurisdiction to hear a custody case.  So even if the parents agree that one of them may relocate with the child to another state, the original state will continue to have jurisdiction over matters concerning custody for at least six months. 

If there is a parenting plan issued in the originating state, and one party continues to reside in that state, then that state continues to have exclusive, continuing jurisdiction over the custody matters unless or until that state relinquishes jurisdiction to the new state for good cause. One reason for the originating state to give up jurisdiction is if the other parent no longer resides in the originating state. At that point, if neither party nor the children live in the originating state, that state no longer has jurisdiction.

The notice of relocation must include specific information about where the party is moving, the new school of the child, and contact information, as well as a proposed parenting plan for what residential time each parent will have after the relocation.  The courts have not been strict on enforcement if a parent fails to provide the information, provided there is enough to identify where they are moving with reasonable accuracy.

If a party is relocating within the children’s school district, notice must still be given, but the other party is not entitled to object. If the non-relocating parent objects to the move, there are specific criteria about objecting to the relocation, including filing an objection, which is, essentially, petitioning for a new parenting plan. That party may file a motion to prevent the move, and the relocating party may also file a motion to allow the move prior to trial.  The objecting party should file a proposed parenting plan for what residential time each party would have if the relocation is allowed, and if the other party relocates anyway, but without the children. The court will consider whether it believes that the relocation will be allowed at trial. The court will also consider eleven factors enumerated in the statute and must make findings addressing each factor.

Relocation can be a very complicated issue, and there are many legal factors to consider.  A relocation may be denied or allowed based on a party’s failure to follow the rules. While a court may have broad discretion over allowing or denying a relocation, the laws governing jurisdiction are far stricter.

With a complex issue such as relocation, it would be wise to consult an attorney familiar with the UCCJEA and relocation to be sure of complying with the statutes.

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