DOMESTIC RELATIONS LAW
The Inadequacy of Current Relocation Laws and a Proposed Solution

By Sally Adams

The state of relocation law across the country is in disarray. This article addresses the current problems with relocation laws and proposes a solution significantly different from the current approaches of most jurisdictions.

The current state of relocation law. An analysis of the current statutes of the 50 states glaringly illuminates the need for a uniform law. Based on the various intricacies of each statute, it is impossible to group the states into precise, delineated categories. Nevertheless, this author has attempted to provide broad categorical groupings of states with presumptions, burdens, and best-interests-of-the-child analyses. Within these broad categories, the variations prove to be abundant.

Presumptions states. Nine states employ a presumption in favor of relocation either through case law or statute. Washington and Minnesota have enacted the Uniform Marriage and Divorce Act (UMDA) but have amended their statutes to address relocation issues. Washington’s statute closely resembles the Model Relocation Act but retains UMDA’s Section 409 language when determining whether the objecting party has adequately rebutted the presumption in favor of relocation. Minnesota’s modification statute is nearly identical to the UMDA, except with a presumption that the child will remain with the custodian. Oklahoma and South Dakota have identical relocation statutes that read: “a parent entitled to the custody of a child has right to change his residence, subject to the power of the district court to restrain a removal which would prejudice the rights or welfare of the child.”

Many states have relied on case law to form their presumption in favor of relocation. Arkansas relocation decisions are governed by case law, not a specific relocation statute. Case law indicates that a presumption exists in favor of relocation for custodial parents with primary custody. The noncustodial parent has the burden to rebut this presumption.

California adopted this reasoning in its landmark case of In re Marriage of Burgess, holding that a custodial parent has the right to change the residence of a child. In Wyoming, a court may modify custody if there is a showing by either parent of a material change in circumstances since entry of the order and the modification would be in the best interests of the child.

Although Iowa’s 2005 enactment of a relocation provision is not explicit in its presumption in favor of relocation, the statute’s language is implicit. Relocation of more than 150 miles is considered a substantial change in circumstances, and the court shall modify the custody order to preserve, as much as possible, the existing relationship between the minor child and the non-relocating parent.

Only two states have presumptions against relocation, Alabama and South Carolina.

Three states take an approach that looks at the current allocation of parental responsibilities and time spent with the children when making relocation decisions: Tennessee, West Virginia, and Wisconsin.

Burden states. Rather than rebuttable presumptions in favor of or against relocation, some courts place the burden of proof on particular parties in order to grant or deny relocation. In some states, the burden of proof remains with the parent who wishes to relocate, whereas in other states the burden of proof is on the parent opposing the relocation and seeking to modify the current custodial arrangement. Finally, some states shift the burden between the parents.

Modification states. Thirteen states continue to deal with relocation issues as an analysis of the child’s best interests. Although Colorado, Kentucky, and Montana adopted the UMDA, they continue to deal with relocation strictly as a modification issue. A few states have enacted statutes that outline factors specific to a relocation case that differ from the general best-interests analysis. Georgia and Virginia have no guidelines for relocation cases. Georgia allows a modification every two years upon motion by a parent or by the court without the necessity of any showing of a change in material conditions and circumstances. Virginia has no provisions regarding the standard for relocation; it simply requires a 30-day notification of intent to relocate.

A proposed approach to drafting a uniform act. There is a need for a uniform act to accomplish three goals. First, it should reduce litigation, thereby minimizing the burden on the court system and minimizing expenses to the parents. Second, it should minimize the emotional trauma on children that is associated with family court conflicts. Finally, it should hold the child’s rights to stability and continuity as paramount to a parent’s right to travel and rear his or her child. The following proposal is an attempt to accomplish these three goals by requiring parents to form preemptive agreements regarding relocation at the time of the original custody determination. In the event that parents cannot come to a suitable agreement, there is a default provision against relocation. The proposal also provides for exceptions in circumstances in which a parent is not exercising his or her rights under the current custody arrangement and in cases of domestic violence.

Preemptive agreements. Because the current statutory scheme is inadequate to prevent relitigation of custody agreements whenever a parent wishes to relocate, the drafters of a uniform act should require parental agreements that address the potential future relocation of a custodial parent, a noncustodial parent, or a joint-custodial parent upon dissolution of unions and awards of custody.

Of course, there may be cases in which parents and their respective attorneys are unable to reach an agreement regarding the potential future relocation of a parent. In these cases, a uniform statute should require the parties to engage in mediation, specialized alternative dispute resolution, or other alternative dispute resolution processes before informing the court that they were unsuccessful in reaching an agreement.

Absent parental agreement: default position against relocation. Under the current models for a uniform act, none take the decision making away from the court and apply default positions. All three models allow the court to exercise discretion in a contested relocation decision, either by deciding that a presumption has been effectively rebutted or that a parent has met his or her burden of proof. Instead of a system with presumptions or burdens, a default provision would effectively remove court discretion in a relocation decision.

In the minority of cases in which parents are still unable to agree after mediation or another form of alternative dispute resolution, the uniform statutes’ default position would apply. By employing a default position in the event that parents cannot agree, the parents would be on notice as to any future plans regarding the custodial situation. A default provision against relocation is a child-focused approach that minimizes the emotional turmoil to the child and reduces litigation.

Contrary to presumptions or burdens, a default provision would significantly reduce litigation and minimize emotional trauma to the child. Social science research is inconclusive regarding whether access to both parents is critical to a child’s well-being. Because there is no consensus, it seems prudent when discussing the emotional well-being of a child to err on the side of caution and acknowledge that access to both parents is a critical factor for a child’s well-being.

 


  • Sally Adams is the second-place winner in the ABA Section of Family Law Schwab Essay Contest and works as a public defender in Burlington, Vermont; she may be reached at sja1077@hotmail.com.

    Copyright 2010

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