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American Bar Association - Defending Liberty, Pursuing Justice

Spring 2009

Vol. 5, No. 3

Family Law


A Moving Case for Staying Put

Opposing relocation at trial.

First Step—The Law

Although the facts will be critical, the first step is to understand the statutory and case-law background of your jurisdiction. Only after the law is understood can the facts be placed into context. Presumptions can be determinative for or against relocation, what relevant weight is given to those presumptions by courts in your area, and which party bears the burden of proof? For example, in your court, the child’s best interests may be considered closely aligned with the custodial parent’s interests. In other courts, the emphasis may be on maintaining meaningful substitute custody arrangements with the nonrelocating parent. For a helpful discussion of these various presumptions, see Baures v. Lewis, 167 N.J. 91, 770 A.2d 214 (2001), and Bates v. Tesar, 81 S.W.3d 411 (Tex. Civ. App. 2002, no petition).

The stage of custody during which the relocation issue develops also may be relevant. If no custody order has yet been entered, the standards applied by the court may be very different than if one parent has already been awarded primary custody. Because relocation cases are so fact- specific, it is particularly important to understand the approach utilized by your particular judge and the county in which he or she presides. Now that most jurisdictions have legal periodicals and computer databases covering local decisions, this task has become much easier.

Psychological Support

After understanding the law, and before turning to the facts, review relevant psychological research. Perhaps the most cited psychological commentator in the area of relocation and its effects on children is Professor Judith S. Wallerstein. See, for example, In re Marriage of Burgess, 13 Cal. 4th 25, 913 P.2d 473, 51 Cal. Rptr. 2d 444 (1996), and Stout v. Stout, 560 N.W.2d 903 (N.D. 1997). (Please note: The authors neither advocate nor criticize Dr. Wallerstein’s work, but merely address the application of these studies to a relocation matter.)

Wallerstein’s work has been described as presenting the view that “what is good for the custodial parent is good for the child.” Baures v. Lewis, 167 N.J. at 106, 770 A.2d at 223. In particular, Wallerstein connects the psychological adjustment of the custodial parent to that of the child and concludes that there is no evidence that “the frequency of visiting or amount of time spent with the noncustodial parent over the child’s growing-up years is significantly related to good outcome in the child or the adolescent.” Judith S. Wallerstein and Tony J. Tanke, “To Move or Not to Move: Psychological and Legal Considerations in the Relocation of Children Following Divorce,” 30 Fam. L.Q. 305 (1996).

Wallerstein’s work, however, while oft cited, has its critics. In opposing relocation, it is important to be aware of Wallerstein’s studies and to be prepared to present the opposing view as addressed in social science research and scholarly articles. For example, in the recent case of Cisneros v. Dingbaum, 2005 WL 697577 (Texas), the testifying experts criticized Wallerstein’s work as being based on old psychological research, being gender biased, and considered by the “vast majority of researchers in the field” to have overreached in its conclusions. Additional critiques or opposing views have been presented in James, “Custody Relocation Law in Pennsylvania: Time to Revisit and Revise Gruber v. Gruber,” 107 Dick L. Rev. 45, 56–60 (2002); Richard A. Warshak, “Social Science and Children’s Best Interests in Relocation Cases: Burgess Revisited,” 34 Fam. L.Q. 83, 84–87 (2000); Marion Grindes, “The Psychological Effects of Relocation for Children of Divorce,” 10 J. Am. Acad. Matrim. Law. 119, 132 (1998); and Joan B. Kelly & Michael E. Lamp, “Using Child Development Research to Make Appropriate Custody and Access Decisions for Young Children,” 38 Fam. & Conciliation Cts. Rev. 297, 309 (2000), among other articles and studies.

In addition to understanding the relevant psychological and social science studies, and if funds permit, a custody evaluation, whether court ordered, by mutual agreement, or independently obtained, may prove helpful. This psychological expert can focus on the strength of the relationship between the nonrelocating parent and the child, the child’s connections to the geographic area (e.g., school, friends, or relatives living in close proximity), and other relevant factors that could affect the court’s decision (for example, if the child has difficulty adapting to new situations or in making friends).

Having this psychological support could alter the court’s perception in the nonrelocating parent’s favor. For instance, instead of being viewed as obstructive, the nonrelocating parent could be viewed as interested in putting the child’s interests first (particularly where the relocating parent is moving to meet his or her own needs and desires).

Highlight the Facts

The third and often most critical component in opposing a relocation request is organizing the facts to support the client’s contention that relocation does not serve the child’s best interests. In deciding a relocation case, the court is engaged in a balancing test: weighing the relative needs of each parent to succeed as individuals, the needs of the child to grow up in as normal and stable an environment as possible, and the needs of each parent to maintain a relationship with the child. See, for example, Gruber v. Gruber, 400 Pa. Super. 174, 583 A.2d 434 (1990), setting out a three-prong test for assessing these competing needs. Facts should be presented in a manner that highlights how they affect the relevant prong or test being considered by the court. If warranted by the circumstances, some relevant facts to highlight include:

1. The strong bond between the nonrelocating parent and the child. It will be essential to demonstrate that a strong bond already exists between the nonrelocating party and the child. Otherwise, the parent’s motive in resisting the move will be suspect. To show this bond, document activities that the parent and child do together on a frequent and consistent basis. This can be anything from coaching sports, driving the school car-pool, consistently assisting with homework, and taking part in extracurricular activities, to jointly participating in religious services. The emphasis should be on regularity and why these activities cannot be replicated if the child relocates. If the contact is frequent, prepare a schedule showing the extent of that contact, including the level of participation in the child’s activities. Or present an actual calendar documenting the level of involvement of the nonrelocating parent.

2. If the move is intended to interfere with the parent-child relationship, establish that for the court. A parent’s decision to move primarily to interfere with the other parent’s relationship with the children is strongly disapproved of by courts. See Leach v. Santiago, 20 A.D.3d 715, 798 N.Y.S.2d 242 (2005). Although it may be difficult to show that the relocating parent is in some part motivated by a desire to keep the children away from the nonrelocating parent, it will be helpful to present any e-mails, letters, or other communications in which the relocating parent has attempted to alienate the children. Providing examples of instances in which the relocating parent has denied the other parent’s reasonable requests for additional custodial time, as was the case in Santiago, may demonstrate that the proposed relocation is intended to keep the nonrelocating parent away from the children and that the relocating parent certainly will not facilitate a continued relationship with the other parent.

3. Show that a substitute visitation schedule is not feasible. Present evidence of the difficulty in constructing a realistic visitation schedule for the nonrelocating parent. Where there are limited financial resources, demonstrate that, as a result of the costs associated with the required travel and accommodations to be incurred by the nonrelocating parent, your client would be unable to pay for both child support and the additional costs and might, therefore, have to forgo visitation rights.

Examine the child’s activities to determine if they lend themselves to the proposed alternate visitation schedule. If the child will have to miss a favorite activity, such as weekend basketball, soccer, or scouting to travel or be in the nonrelocating parent’s custody, point that out to the court. Demonstrate the losses the child will incur by having to relocate and be subject to the substitute visitation schedule, particularly losses that would not be suffered if relocation is denied.

In this post 9/11 era, it also is appropriate to share with the court the logistical difficulties of alternative travel arrangements, such as data regarding the amount of travel time from one parent’s home to the other, particularly if air travel is required. Depending on the ages of the children, additional evidence might include the relevant airline’s policy regarding unaccompanied minors. With this approach, the practitioner will present both the advantages of the current schedule and the disadvantages of relocating.

4. Point out any instability or uncertainty with the relocating parent. Where the nonrelocating parent has consistently provided a stable environment and the parent who desires to move has had fluctuating living arrangements or involvement in volatile relationships, the court may favor the nonrelocating parent. See, for example, Tener v. Tener-Tucker, 2005-Ohio-3892, Ohio App. 12 Dist., WL 1798273 (2005). In addition, where the relocating parent cannot provide proof of a stable living situation and at least comparable accommodations to the child’s current situation, the balance will likely again weigh against relocation.

To challenge the relocating parent’s assertion that he or she has the ability to maintain a stable living situation and obtain adequate employment, demonstrate either that the relocating parent has failed to “do his or her homework” or that reasonable accommodations do not exist in the proposed community. Question the relocating parent as to the existence of any formal employment contracts, leases, contact with any real estate agents, and suitable day-care facilities, etc. When there is an issue as to the viability of employment opportunities that will provide sufficient income for both the parent and children, it may be helpful to bring in a Qualified Rehabilitative Consultant (QRC) as discussed in the Separated Parenting Access & Resource Center’s article, “Fighting Relocation with Children,” cited at

5. Assess the benefits of the relative schools. Where the child performs well academically in the current school and there is reason to believe that he or she will not perform as well academically if relocation is allowed, the court may again be reluctant to grant relocation. In such a case, it is helpful to have report cards and, if possible, the testimony of teachers and friends. As many school authorities are reluctant to allow their teachers to testify without a subpoena (and, even if they do testify, they may be hostile), records should be obtained. If the child has special needs, including being gifted, emphasize that the current location is best-suited to meet those needs, including the proximity of doctors, special schools, or other forms of assistance or relevant programs. See Wild v. Wild, 13 Neb. App. 495, 696 N.W.2d 896 (2005).

Be prepared to present information comparing the strengths of the current with the proposed school. In addition consider hiring educational experts to testify.

6. Demonstrate the child’s strong ties to family and friends in the current location. The effect that relocation has on the relationship between the child and the noncustodial parent clearly is a major consideration in any relocation analysis. However, other relationships also will be considered in the ultimate decision. In Brown v. Brown, 260 Neb. 954; 198, 621 N.W.2d 270 (2000), the court believed that it would “be remiss not to consider the relationship of children to younger siblings.” This is especially true in those jurisdictions where there is a presumption against dividing siblings. Where a strong relationship is found (between siblings, grandparents, or other extended relatives), it can weigh heavily against removal. Thus, particularly while the relocation petition is pending, advise your client to maintain those relationships with extended family and others.

7. Highlight any safety issues with the proposed relocation. Where one parent expresses a desire to relocate with a child to what might be perceived as an unsafe living situation, courts may be reluctant to approve relocation. In Racsko v. Racsko, 91 Conn. App. 315, 881 A.2d 460 (2005), the court rejected a mother’s petition to relocate the children to Israel due to the unsafe conditions in Israel at the time. The court reasoned that, despite the cultural and educational opportunities Israel presented, the dangers involved with living in a country that had experienced recent terrorist attacks sufficiently outweighed the benefits of the move.

One of the simplest tools to use in determining the relative safety of a foreign locale is the United States Department of State website, which lists travel warnings, consular information sheets, and public announcements. Within the United States, a wealth of data is available comparing different geographic regions on everything from schools, crime, and cost of living to weather.

Parting Words

Discovery, if available in your jurisdiction, can be a very useful tool. The easiest approach is to seek from the other side all of the reasons asserted to support relocation and all of the evidence, including witnesses and documents, to be presented on the issue. If time allows, this can be done through interrogatories, requests for production of documents, and even requests for admissions. (Even if the practitioner is required to obtain court approval of discovery in custody cases, a cogent argument can be made for obtaining that material.) If time does not allow, consider utilizing a subpoena or notice to attend for the hearing.

At trial, ask the court’s permission to make an opening statement, particularly if your reasons for objecting to relocation are strong. This allows the court to become sensitive to your position before hearing the relocating parent’s case in chief.

In the end, remember that in most jurisdictions the standard for reversal is an abuse of discretion, and credibility findings are not going to be overturned. For these reasons, it is critical to remain focused on the issues that are relevant to your particular judge. Know and apply the law and the psychological issues, but it is the facts that will make or break the case.

The No-Go Checklist

1. Demonstrate the strength of the relationship between the nonrelocating parent and the child.

  • Use calendars and photographs.

2. Demonstrate that the move will interfere with the nonrelocating parent’s consistent contact with the child.

  • Illustrate the absence of a feasible alternate visitation schedule.
  • Include figures to demonstrate high costs, the increased distance between the two homes, etc.
  • Provide a comparison between the time the child currently spends with the nonrelocating parent and the inevitable potential decrease resulting from the move.

3. Provide evidence of uncertainty associated with the move and any instability in the new location.

4. Discredit the proposed future school and emphasize the strengths of the current school.

5. Emphasize how the move will force the child to break strong ties to the community and extended family.

  • Show that the child has developed a stable routine, the interruption of which will be detrimental to the child.

6. Use discovery to discredit the motives of the moving parent.

  • Provide any written evidence to show a history of parental alienation on the part of the relocating parent.


David N. Hofstein and Ellen Goldberg Weiner are shareholders in the domestic relation firm of Hofstein, Weiner & Levit, P.C. in Philadelphia, Pennsylvania. Mr. Hofstein also is an adjunct lecturer at Temple University’s James E. Beasley School of Law and previously served as co-chair of the CLE Committee of both the ABA Section of Family Law and the American Academy of Matrimonial Lawyers. Scott J.G. Finger joined the firm in September 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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