May 10, 2021 Feature

Relocation Factors: A Lawyer’s Guide

Christopher C. Melcher and David R. Bass

When one parent seeks to relocate a child over the objection of another parent, it results in heart-wrenching, expensive litigation. One parent faces the prospect of being left behind, relegated to a long-distance relationship with his or her child. Although laws vary from state to state, courts and evaluators across the country consider broadly similar factors in deciding a relocation request. Understanding these factors is necessary to assess the merits of a move-away case, gathering evidence for—or against—the move, and making a persuasive argument.

What Is a Move?

A “move-away” occurs when a parent requests the relocation of a child against the other parent’s wishes. How far does the proposed move have to be to be considered a relocation? The distance, or time to travel, must be enough to disrupt the current custodial arrangement.

A parent initiates the request by declaring his or her intent to relocate, but no permission is needed for the parent to move. Implicit in the federal constitutional right to travel is a person’s entitlement to change his or her residence. No impairment of constitutional rights occurs when a court denies a child’s relocation, even if the primary parent is the one leaving. The inquiry is whether the child will be allowed to move with the relocating parent.

The Prime Directive

Some states, like California, force their courts to assume a parent will relocate—with or without the child. The intention of the law is to prevent judges from confronting parents with a Solomonic choice by inquiring whether the parent would move if the child could not come along. Such questioning could coerce a parent to abandon a move.

But the counter effect of this rule is the requesting parent must gamble with his or her custody rights. If the child’s relocation is denied, the child will remain with the nonmoving parent. That is a natural consequence of parents who live in different places, making it impossible to regularly share custody.

Relocation Factors—Generally

Courts and evaluators have developed factors to consider in assessing a move-away request. Although each state may have its own formulation, the similarities are greater than the differences. The common factors are shown in the chart with this article. It is intended as a handy reference to practitioners for every relocation case. Key factors are discussed below.

Motivation to Move

A relocating parent’s judgment in changing a child’s community is a proper inquiry. Certain states, e.g., California, provide a presumptive right to relocate a child when the parent has sole custody, requiring the objecting parent to show the move will be detrimental to the child. Unless aided by a presumptive right to change a child’s residence, the relocating parent must persuade the court to grant the relocation by explaining why the child should be removed from his or her community.

Even if a parent’s motivation is legally irrelevant, counsel should still present evidence on why the parent is relocating. A good faith reason is more likely to be accepted by the court than a move made in bad faith. Reasons for a move fall into these categories:

  • Economic. Are economic factors, such as a new job or reduced living costs, driving the decision to relocate?
  • Family. Will the new community provide the child with greater familial support than is provided by the current environment? Or must the parent care for a close family member who lives in that community?
  • DV/Abuse. Are the parent and child leaving to escape an abusive relationship?
  • Spite. Does the parent wish to disrupt the other parent’s relationship with the child for no legitimate reason?

The Effect of the Relocation

The best-intentioned moves will still affect the relationship with the left-behind parent. The consideration the relocating parent has given to the decision to move, and the impact it will have, must be investigated. For instance:

  • What alternatives to relocation has the requesting parent considered?
  • What plans does the parent have to maintain the relationship between the other parent, their child, and any siblings?
  • Is the relocating parent willing to provide most school breaks to the left-behind parent?

Practice Point: These issues should be explored before the custody evaluator brings them up or the parent is asked about them during their testimony.

Arizona, for example, provides education on the impact of divorce on adults and children, including emotional, psychological, financial, physical, and other short-term and long-term effects. Whether a parent has received that education is a move-away factor in that state. Regardless of which state is involved, every court should consider the awareness, or lack thereof, by the relocating parent of the effects of a move away on the left-behind parent and their child.

Once school starts, there will likely be three breaks a year. The relocating parent may want some, or all, of that breaktime, but a court could allocate it to the left-behind parent. The relocating parent must understand that, even if the move is granted, the majority of every spring, summer, and holiday vacation could be the left-behind parent’s time. No doubt, the relocating parent will argue that the child has sports or other activities that require attendance. That is true, but it does not compare to the need to have a relationship with the left-behind parent.

Child’s Age and Distance of Move

Young children who have not started school are more easily shared at distance because longer custodial periods are possible with each parent. Older children may be better at maintaining a long-distance relationship with a parent through video or other means of electronic communication. Children have become used to video calls for school due to the pandemic and may be better at connecting over video and holding their attention for longer calls. Even so, video is a poor substitute for the lost ability to cook breakfast for the child, take him or her to school, and hear about his or her day afterward.

Financial Stability

Finances are important. While wealthy parents can afford frequent weekend getaways, the rest of the population will be limited to sparse visits. It is no solace to allow the left-behind parent the right to visit a child in the new community if the parent cannot afford to get there, rent a room, and pay the other expenses. Counsel for the left-behind parent should request a travel expenses order should the court grant the moving party’s request.

Parent-Child Relationship

The bond between each parent and the child/children is not always equal. If, for example, a parent has not been consistently present in a child’s life, a relocation will not impact that relationship. Once-a-month visits before the move might just as easily be made after a move, provided that money for travel expenses has been allocated beforehand.

When a child has a great relationship with both parents, the decision to award custody to one parent becomes a difficult and grueling one. That is the inevitable outcome.

The focus is often disproportionately placed on what effect the move will have on the left-behind parent’s relationship with the child. But the court must also consider the impact on the child if the request is denied and the relocating parent is no longer present in the child’s life. A parent should not be indirectly punished by having custody removed because a relocation was sought in good faith. Unless a legal presumption applies or burden-shifting is required, every effort should be made to ensure that neither the relocating parent nor the left-behind parent is accorded a greater status than the other.

A Third Option?

Family lawyers have thought of relocation cases as a binary choice: The court will either grant or deny the child’s relocation to the place requested. Some courts, however, have found a third option.

Imagine, for example, that the family lives in a small community in rural California, away from the big cities. The mother wants to move to Manhattan, New York, for greater opportunity. The father opposes the move. Historical thinking would suggest that the court could either grant or deny the move. However, a “third option” theory suggests the court can deny the New York request while allowing a move to a comparable city that is closer to where the family lives, like Los Angeles, if the mother will go there instead.

A similar thing happened in AY v. AS [2019] EWHC 3043, which was decided by a trial court of England and Wales. The mother wished to relocate her daughter to Kazakhstan because she missed her family and the Kazakh community, and believed greater economic opportunity existed there for her. The father wanted their child to remain with him in Devon. At the start of its opinion, the court recognized the conventional thinking that relocations can only be binary. But this court found a “middle way” by allowing the mother and daughter to move to London, which has a robust Kazakh community and better job opportunities. London had the advantage of only being 175 miles from Devon.

As our law develops, we should always strive to consider this third way instead of being locked into the traditional binary thinking.

International Jurisdiction

Although a relocation order is not a relinquishment of jurisdiction over the child, problems may arise in international moves because foreign courts might ignore a U.S. custody order, absent enforceable international law like a treaty. The interesting thing about the UCCJEA is that it does not require reciprocity. Under the UCCJEA, courts here must recognize a foreign custody order if the foreign court had jurisdiction in substantial conformity with our law, even though the foreign court would not recognize a U.S. order if the roles were reversed.

If the relocated parent refused to comply with the visitation order by the U.S. court, the Hague Abduction Convention may not be much help. Although the convention requires the return of an abducted child to his or her country of habitual residence, the question becomes which country will that be after the move. Post-relocation, the child will live permanently in the new country with court approval, making the new country the child’s habitual residence after living there for a year. If there were an abduction, the place of return would probably be the child’s new country, not where the child used to live.

After living permanently in the new country, the court of that country would likely have authority to modify the parenting plan. Deference or comity only goes so far. A court in the child’s permanent residence would be inclined to make orders necessary for the child’s welfare. At some point, the new home court will take jurisdiction and might modify the U.S. visitation order. This jurisdictional mess is an unavoidable consequence of any international relocation.

One potential solution is to require a “mirror order” in the court of the new country before the move is authorized. If the relocating parent cannot obtain such an order or provide other assurances, the relocation could be denied. Expert testimony on the other country’s jurisdiction could be essential to have a foreign relocation granted, or to raise enough doubt about the effectiveness of any visitation orders abroad to convince the court to deny the move.

California has had its fair share of international relocation cases. California mandates that, before a judge can grant an international relocation, the court must be assured that the visitation orders for the left-behind parent will be enforced in the new country. Otherwise, the relocating parent could refuse any visitation, resulting in a de facto termination of parental rights. Marriage of Condon, 62 Cal. App. 4th 533 (1998). Because of this requirement, some scholars believe that Condon makes it hard to grant an international relocation request.

Conclusion

Deciding whether to grant a move-away request is an incredibly challenging decision for a judge to make. As practitioners, we guide clients through these turbulent waters, knowing that one party will be disappointed. Knowing the factors courts consider in determining relocation cases is paramount from the beginning.

Move Away Factors

Child

Age, Special Needs, Relationship with Parents, Temperament, Preference, Connections

Parents

Parental Capacity, Psychological Stability, Co-Parenting History, Gatekeeping, Reasons for Move, Domestic Violence/Abuse

Other

Distance of Move, Time Since Separation, Travel Costs for Visits, Overseas Enforceability, Blended/Extended Family, Other Impacts of Move

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Topic:

Christopher C. Melcher is a partner with Walzer Melcher LLP, in Woodland Hills, California. He specializes in complex, high-stakes family law trials and appeals throughout California, with a focus on international disputes, premarital agreements, and business valuation.

David R. Bass is a post-graduate pending admission to the California bar, with a master’s degree from the London School of Economics and completed legal education in England.