Lawyers and judges have noticed the increase in the number of custody disputes in which relocation is an issue. The reasons are many: the steady high- divorce rate; the number of joint-custody and shared-residency arrangements; the shifting job market; remarriages; and the mobility of today’s society. See Kaiser v. Kaiser, 23 P.3d 278, 284 (Okla. 2001) noting that:
Ours is an increasingly mobile society…approximately one American in five changes residences each year. Economic necessity and remarriage account for the bulk of relocations. Because of the ordinary needs for both parents after a marital dissolution to secure or retain employment, pursue educational or career opportunities, or reside in the same location as a new spouse or other family or friends, it is unrealistic to assume that divorced parents will permanently remain in the same location after dissolution or to exert pressure on them to do so.

The outcome of any given case will depend on the type of parenting arrangement that exists and the attitudes of the judge who hears the motion. Some states have a well-developed case law on relocation; other states have little.

Among the considerations will be:

• If the request is being made at the time of the initial decree, what standard is to be applied?

• If this is postdecree, are there restrictions by statute, court decree, or agreement of the parties?

• What is the parenting arrangement? Regardless of label, are the parents coparenting or does one parent have most of the responsibility?

• Does statute, decree, or agreement require notice of intent to move? If so, how much?

• Is an intent to move a change of circumstances sufficient to reopen the custody issue?

• Is there a statutory or judicial presumption for or against allowing a move?

• What standard will be applied? Best interests of the child or endangerment?

• How will the child’s quality of life be affected?

• What opportunities are there for the nonmoving parent and the child to maintain a close relationship and how likely is the moving parent to comply with the new arrangement?

• Can the parties afford the new access arrangements?

Some courts balance the parents’ fundamental right to the care, custody, and control of their children ( Troxel v. Granville, 530 U.S. 57 (2000); Santosky v. Kramer, 455 U.S. 745 (1982), with the fundamental right of citizens of the United States to travel freely between states. Shapiro v. Thompson, 394 U.S. 618 (1969); Jones v. Helms, 452 U.S. 412 (1981); Saenz v. Roe, 526 U.S. 489 (1999), and the best interests of the child. See In re Marriage of Ciesluk, 113 P.3d 135 (Colo. 2005); Braun v. Headley, 750 A.2d 624 (Md. Ct. Spec. App. 2000), cert. denied; Jaramillo v. Jaramillo, 823 P.2d 299 (N.M. 1991). At least one court has indicated that changing a child’s custody solely because the residential parent attempts to relocate infringes on the parent’s right to travel. Watt v. Watt, 971 P.2d 608, 615-16 (Wyo. 1999), allowing mother to move 50 miles away to attend graduate school, stating:

The right to travel enjoyed by a citizen carries with it the right of a custodial parent to have the children move with that parent. This right is not to be denied, impaired, or disparaged unless clear evidence before the court demonstrates another substantial and material change of circumstance and establishes the detrimental effect of the move upon the children.

If a parent wishes to move at the time of the initial custody proceeding, most courts use the same best interest of the child standard that applies in any custody dispute between fit parents. Linda D. Elrod, Child Custody Practice and Procedure § 4:35. See Ford v. Ford, 789 A.2d 1104, cert. denied, 796 A.2d 556 (Conn. 2002); Stangel v. Stangel, 355 N.W.2d 489, 490 (Minn. Ct. App. 1984), rev. denied; Barney v. Barney, 754 N.Y.S.2d 108 (App. Div. 2003); Resor v. Resor, 987 P.2d 146 (Wyo. 1999). The proposed relocation will be viewed as part of the best-interests analysis with one parent living in another jurisdiction. See Ragghanti v. Reyes, 20 Cal. Rptr. 3d 522 (Ct. App. 2004); Davis v. Davis, 588 S.E.2d 102 (S.C. 2003); Pahl v. Pahl, 87 P.3d 1250 (Wyo. 2004). The Colorado Supreme Court recently determined that the court had no authority to dictate where either parent might live—the court could only take those parental choices as a given and fashion the best possible order based on the circumstances. Spahmer v. Gullette, 113 P.3d 158 (Colo. 2005).

Doesn't anybody stay in one place anymore...?

– Carole King

Most cases, however, occur after the initial custody order. Several states have statutes requiring the moving parent to give notice to the other parent. These statutes vary as to when notice must be given, who is entitled to notice, the effect of notice, and the penalties for noncompliance. States generally use one of three basic approaches to dealing with relocation cases when the custodial or residential parent wishes to move.

1. Relocation alone is not a change. These states find that a proposed relocation alone is not a change in circumstances, resulting in a presumption in favor of relocation by the custodial or residential parent. See Hollandsworth v. Knyzewski, 109 S.W.3d 653, 657 (Ark. 2003); Botterbusch v. Botterbusch, 851 So. 2d 903 (Fla. Dist. Ct. App. 2003); Evans v. Evans, 530 S.E.2d 576 (N.C. 2000); Latimer v. Farmer, 602 S.E.2d 32 (S.C. 2004); Watt v. Watt, 971 P.2d 608, 616 (Wyo. 1999). See also Kan. Stat. Ann. 60-1620(c)(stating a proposed move may be a change).

2.Relocation is a sufficient change for a hearing. A move may be a material change of circumstances by statute (see Colo. Rev. Stat. Ann. § 14-10-129(2) (2004); Iowa Code Ann. § 598.21(8A) (2004); Me. Rev. Stat. Ann. tit. 19-A, § 1657 (2004); Mo. Ann. Stat. § 452.411 (2004)) or court decision, which requires a full hearing. See Hamilton v. Hamilton, 42 P.3d 1107, 1115 (Alaska 2002); Fowler v. Sowers, 151 S.W.3d 357 (Ky. Ct. App. 2004) (finding mother’s proposed move to Alaska to be a change of circumstances); In re Marriage of Syverson, 931 P.2d 691 (Mont. 1997); Gietzen v. Gietzen, 575 N.W.2d 924 (N.D. 1998). If a hearing is held, the court may use shifting presumptions so the residential parent has the initial burden to show that the move is in good faith and is in the child’s best interest; the burden then shifts to the nonresidential parent to show the move is not in the child’s best interests. See N.H. Rev. Stat. Ann. § 458:23-a (2004).

3.Relocation may be a change of circumstances, but both parents bear the burden of proving the child’s best interests. A move may be a change of circumstances, but the court uses no presumptions. Each party bears the burden of showing why being with him or her is in the child’s best interests. See Fla. Stat. Ann. § 61.13 (2)(d) (2004)(no presumption shall arise in favor or against a relocation by primary residential parent); In re Marriage of Ciesluk, 113 P.3d 135 (Colo. 2005); Fohey v. Knickerbocker, 130 S.W.3d 730 (Mo. Ct. App. 2004). See Elrod, Child Custody Practice and Procedure § 17:28.

The following table [on pages 10-11] gives the relevant state statute, the amount of notice required, whether the state appears to have a presumption for or against a move, and a representative case.

State Statutes on Relocation Chart



Linda D. Elrod, a Distinguished Professor of Law and Director of the Children and Family Law Center at Washburn University School of Law, is past chair of the ABA Section of Family Law. Portions of this article were taken from the author's manuscript for A Lawyer's Guide to Handling Relocation Cases (forthcoming ABA 2006).

Published in Family Advocate, Volume 28, No. 4, Spring 2006. © 2006 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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