Child Custody

Child Custody: Can I move my minor children to another state or country after my divorce?

Divorce brings significant change to families, both emotional and physical, especially when children and child custody issues are involved.  Sometimes circumstances warrant one parent wanting or needing to move to another state and wishing to take the children with them.

Unless the parents can agree on how they will manage such a move, the party seeking to relocate will have to seek a judgement from the court allowing him/her to take the children.  This process is called a Petition for Removal. 

The decision to allow one parent to move the children away from the other parent is complex and difficult.  A judge must look at the circumstances of each case and weigh and balance the interests of all the parties involved.   The specific test a judge uses to determine whether to grant a Petition for Removal depends on whether the parents have shared physical custody or whether one parent alone has physical custody and the other has visitation rights.  A parent who has physical custody is called the “custodial parent” and the parent who does not have physical custody of the children is called “a non-custodial parent”.

If the parents have shared physical custody the court uses the “Best Interests” test to make the decision as to whether the children can be taken to another place. This test focuses heavily on what is best for the children and less on what benefit the parent looking to relocate would gain from the move.  The premise behind this analysis is that when both parents equally share physical custody the children most likely do not have a tightly woven relationship with just one, and the best interests of the children must override the interests of one parent.

Conversely, if one parent has sole physical custody and the other has visitation the court uses the “Real Advantage” test to evaluate the case.   The difference between these two tests is the weight given to each parent’s interest in the removal. In this scenario, significant weight and consideration is given to the custodial parent’s interests in moving.  However, the burden is on the parent looking to move to establish that his/her motive for moving is based upon a “real advantage”.  This can mean getting a better job, having more economic opportunities or availability of additional family supports.  A mere wish for a change or an underlying desire to separate the children from the other parent are not sufficient reasons to justify a move.

Once the court is satisfied that there is a real advantage to the custodial parent moving, then the judge will look at the interests of all the parties, custodial and non-custodial parents as well as the children.  Consideration will be given to whether and how the quality of the children’s lives will be improved, the effect the move will have on the children’s relationship with the non-custodial parent, and what measures can be taken to keep the children in regular contact with the non-custodial parent to preserve their relationship, among others.

There is no “one size fits all” solution with removal cases.  Each case will be decided on its own individual facts and circumstances.  Generally, a great deal of evidence will need to be presented to support the party’s position for or against removal.  Documentation may be necessary from schools, psychologists, medical doctors, vocational experts or other family members.   These cases are complex and require an attorney experienced in the area of family law.

Carter DeYoung Attorneys At Law Cape Cod