DOMESTIC RELATIONS LAW
Still Partners? The Consequences of Post-Dissolution Parenting
Economic consequences of relocation for the custodial parents garnered less judicial attention.
Parents who divorce or separate are strongly encouraged to co-parent their children. The co-parenting approach falls into sharp conflict with the economic clean break model, under which divorced persons and cohabitants who part ways are entirely separate individuals, unencumbered by ongoing legal or financial relationships, free to build new lives and make a fresh start. This article examines relocation and its relationship with the economic clean break model, and it analyzes the limited set of choices available to judges facing relocation disputes.
Getting away: The “clean break” theory of divorce and cohabitant separation. For divorcing individuals, the goal is economic autonomy following divorce or separation. To achieve this, the preferred approach is to resolve all financial issues through the distribution of marital property. Couples who divorce when they have minor children, however, rarely have much marital property available for distribution. This often leaves the parties in very different economic circumstances. Often the husband leaves the marriage with more human capital—a greater ability to earn money in the workforce.
The other remedy available at the time of divorce—alimony—is often quite restricted. It is tailored to give the ex-spouse a relatively short period of time in which to gain job training, further education, or work experience in order to become economically self-sufficient. It is disfavored in order to encourage the parties to leave the marriage without any lingering economic ties. This “clean break” approach is reflected in the Uniform Marriage and Divorce Act. Alimony is also strictly limited to the time of divorce. Unexpected post-divorce changes cannot lead to the creation of a new alimony obligation, one that was not initiated during divorce proceedings.
Continuing interdependence: Post-divorce co-parenting. Through a multitude of media, separating and divorcing parents are exhorted to put aside their differences in order to effectively “co-parent” their children. Although these materials may be written in non-gendered language, most acknowledge that co-parenting is aimed at keeping fathers in the lives of their children after dissolution. These writings link a close relationship with both parents to children’s positive adjustment after divorce. Most states permit joint custody, and 12 states and the District of Columbia have some form of presumption of joint custody. In many states, joint legal custody is now the norm rather than the exception. Joint physical custody has also gained traction. At the least, most state custody laws now explicitly identify ongoing contact with two parents as a major policy goal of the child custody statute. In most of the relocation cases reviewed for this article, however, both parents were spending significant amounts of time with their children.
Where clean break and co-parenting collide: Relocation disputes. Relocation disputes have risen dramatically in recent years. They usually develop after dissolution when the parent who has sole custody or is the majority-time residential parent, usually the mother, seeks to move away from the other parent. State approaches to these disputes vary widely, and the outcome of any dispute is far from certain.
Many states require custodial parents who wish to relocate to notify the other parent. If the other parent contests the move, a hearing must be held, usually prior to the move. State approaches to relocation fall into several broad categories: states that place the burden of proof on the parent opposing relocation to demonstrate that the move is not in the child’s best interests; those that adopt a neutral best-interest test; and those that place the burden of proof on the parent seeking relocation to demonstrate that the move is in the child’s best interests. These varied approaches have in common an emphasis on the best interests of the child. Only a small number of states explicitly consider the interests of the parent seeking relocation.
This author reviewed all custody relocation cases in the five-year period from June 1, 2001, to June 1, 2006. Courts granted permission to move in 49 percent of the cases in which a final decision was made. In most jurisdictions, custodial parents could not count on being able to relocate, and this uncertainty may make it hard to accept new offers of employment or make plans to remarry or live with a new spouse.
The cases reviewed reveal the multitude of reasons why custodial parents seek to relocate and the extent to which these reasons have important economic dimensions. Twenty-eight percent of the parents sought to relocate for their own employment or their spouse’s employment. Fifteen percent tried to relocate for remarriage. Twenty-one percent sought to relocate for multiple reasons that usually included improved employment, remarriage, or further education, all justifications that generally provide long-term economic benefits. Eleven percent looked to relocate to live with or near close relatives who could offer economic support or in-kind assistance, such as the child care needed for employment or education. For most parents who sought relocation, economic benefits were at least one important factor in the relocation.
Many of the relocation cases focused on the benefits of co-parenting for the children involved, not the costs to the custodial parent. Given that 90 percent of those parents seeking to relocate are mothers, this meant that judicial focus was on maintaining the relationship between children and their fathers. Economic consequences of relocation for the custodial parents garnered less judicial attention. Despite the significant economic costs of many denials of permission to relocate, current relocation doctrine does not provide an economic remedy to parents denied permission to relocate. This sacrifice was not, however, required of the non-relocating non-custodial parent. Only in a few instances did a court even consider the possibility that the non-custodial parent could relocate at the same time in order to remain in close proximity to the child. The non-custodial parent’s right to remain in the current geographic location was simply assumed.
The significant limitations on the economic autonomy of custodial parents, imposed through custody relocation doctrine in order to further the co-parenting approach to post-dissolution parenting, undermine the benefits of the clean break approach to post-dissolution economic issues. To remedy this imbalance, the author proposes that courts have explicit authority to consider an economic remedy when they deny relocation. This remedy should be based on an income-sharing model that would recognize that at least some of the financial burden should be shared. While the other parent will not always have the financial ability to fully compensate the custodial parent for the lost economic opportunity, equitable income sharing would provide some assistance and split the costs of co-parenting as equally as possible.
Conclusion. Property and alimony decisions made at the time of dissolution cannot reflect the changes that may occur throughout the rest of the minority of a couple’s children. Those with primary responsibility for caring for children post-dissolution may face important limitations on their earning capacity as a result of those caretaking responsibilities. For some custodial parents, those limitations may derive largely from their obligations to support the co-parenting of the child by the other parent. This article urges that when courts restrict parents’ ability to relocate they should be able to provide an economic remedy, through income sharing, for those restrictions. We should ensure that those economic costs are not borne alone by those who already make other significant sacrifices to care for their children.
Theresa Glennon is the Feinberg Professor of Law at the James E. Beasley School of Law at Temple University. She may be reached at firstname.lastname@example.org.