June 28, 2017

Evaluating the Relocation Case

Linda Lea M. Viken


In today’s mobile society and shifting economies, frequent moves are common, not only within a state, but between states. When that move involves a child whose parents do not live together, it is not as simple as packing up and heading off.


The right of a citizen to travel from one state to another and to take up residence in a state of choice is protected by the Constitution of the . “This right encompasses the right to ‘migrate, resettle, find a new job, and start a new life.’” Edelman v. Jordon, 415 651, 671, 629, 39 L. Ed.2d 662, 94 1347 (1974).


Courts have held:


It makes no difference that the parent who wishes to relocate is not prohibited outright from doing so; a legal rule that operates to chill the exercise of the right, absent a sufficient state interest to do so, is as impermissible as one that bans the exercise of the right altogether.

Jaramillo v. Jaramillo, 113 N.M. 57, 823 P.2d 299, 306 (N.M. 1991) (citing Schapario v. Thompson, 394 618, 631, 22 L. Ed.2d 600, 89 1322 (1969)).


Courts also have said:


However, a majority time parent’s right to travel is not the sole constitutional right at issue in relocation cases. In addition a minority time parent has an equally important constitutional right to the care and control of the child.

See Troxel v. Granville, 500 57, 65, 147 L. Ed. 2d 49, 120 2054 (2000). (“The liberty interest at issue in this case, the interest of the parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.”) Ciesluk v. Ciesluk, 113 P.3d 135, 2005 LEXIS 548.


Best Interests

The foregoing cases make clear the competing constitutional issues between parents in relocation cases. However, a third and important factor for a court to consider is the best interest of the child.


In June 2005, the Colorado Supreme Court in the case of Ciesluk v. Ciesluk, 113 P.3d 135, 2005 Colo. LEXIS 548, concluded that states have developed three distinctive approaches in considering relocation cases. They include: (1) elevating the relocating parent’s right to travel over the other competing interests (see, for example, Watt v. Watt, 971 P.608, 615–16 (Wyo. 1999)); (2) elevating the child’s welfare to a compelling state interest (see, for example, LaChappelle v. Mitten, 607 N.W.2d 151, 163–64 (Minn. Ct. App. 2000)); and (3) treating all competing interests as equal, with the burden on the parents to demonstrate how the child’s best interests are served by the proposed relocation (see Jaramillo v. Jaramillo, 113 N.M. 57, 823 P.2d 299, 307–09 (N.M. 1991)).


Additionally, some states prohibit relocation of a child unless the custodial parent can demonstrate a compelling showing of exceptional circumstances or a pressing concern for the welfare of the custodial parent or child.


The Facts

There are three types of relocation cases: Those that occur at the time of the divorce, where no prior permanent order exists; those that occur postdivorce; and a third type, more common these days than in the past, the case of unwed parents. As with any case, relocation cases involve an application of law to the facts.


The evaluation of a relocation case has several components, both from a factual and a legal standpoint. The following questions show the types of analysis necessary in a relocation case either from the perspective of a party seeking to move or of the party contesting it.


• Is there an existing order or agreement of any kind (or a statutory presumption for custody as may exist in the case of unwed parents)?

• If so is the order temporary or permanent? Under what circumstances was it entered, i.e., consent order, order after contested hearing, or default order?

• What is the history of each parent in raising the child?

• Is there a written history of postdivorce or separation contacts with the child by the noncustodial parent?

• Is there any history of abuse?

• What is the motivation of each parent for and against the move?

• What is the child’s relationship with each parent? In particular, what involvement has the noncustodial parent had in the child’s life to date?

• Has the noncustodial parent consistently fulfilled child-support and/or alimony obligations?

• Has counsel obtained the child’s school and medical records?

• Does the child have developmental needs, given his or her age, i.e., is this a young child who needs stability or an older child who enjoys new experiences?

• Does the child have medical or learning problems? Is there an adequate opportunity to get treatment in the new area?

• Are extended family members present in the current or proposed locations, including step-siblings or half-siblings?

• What is the distance between the current home and the new removal location?

• What are the anticipated living arrangements, including the physical setting, schools, after-school and day-care providers?

• What are the tangible and intangible factors (such as lifestyle, climate, standard of living, environmental quality, congestion, crime, real estate and other costs, economic opportunities, and community resources, etc.) in the two relocations?

• What are the wishes of the child? (This can be an extremely strong factor for or against the move, depending on the age of the child.)

• If applicable, what is the recommendation of the guardian ad litem?

• What are the specific benefits to the parent from the move?

• What are the specific benefits to the child from the move?

• What are the specific detriments to the noncustodial parent if the child moves?

• What are the specific detriments to the child if the move is allowed?

• Does the family have a history of moving or are frequent moves in the future likely?

• What considerations are there regarding mental-health problems of parents or the child?

• Have mental-health evaluations or opinions been given regarding the move, the parents, and/or child’s mental health?

• What is the relationship between the parents and are they able to communicate and cooperate?

• What are the increased travel costs (if any) and how do they compare to the (presumed) decreased weekly parenting expenses of the nonrelocating parent?

• What compensations can the moving parent offer to the noncustodial parent, e.g., visitation with the child on major holidays and summer vacations as well as paying for the transportation, setting up Web cameras, etc.?

• Has counsel interviewed potential witnesses, including teachers, mental-health professionals, day-care providers, extended family members, and others?

• What role has religion played in the child’s upbringing and how will religious education be affected by the move?

• Would it be feasible or practical for the nonrelocating parent to move to or visit regularly in the new location?

• Are there any other factors that the parent believes are relevant in the decision-making process?


The Law

After ascertaining the facts, analyze state-specific requirements. As noted above, most states fall into certain categories and a thorough review of case law in the current jurisdiction is key (as well as applicable federal case law). An analysis of other states’ handling of similar cases can be useful as well, especially if the particular state does not have specific statutory criteria. Over the years, both courts and legislatures have changed considerations in a relocation decision. Thus, an effective argument based on another state’s precedent may persuade a court to rule in your favor, notwithstanding that local case law may appear unfavorable. A review of case law also may provide practical ideas for winning approval, such as methods to maintain contact between the child and the noncustodial parent in ways that diminish the physical distance. In this day of electronic connections, things as simple as email or a Web cam can facilitate a relationship, especially when long distances prevent regular face-to-face contact.


One caveat: many states require notice from a custodial parent who wants to move. Failure to meet requirements of the statute may result in denial of the relocation. Depending on the requirements of the jurisdiction, a professional evaluation of the child and a recommendation regarding the potential move and its effect on the child/parent relationship can be powerful evidence of the best interest of the child. It also will help to assess the strengths and weaknesses of your case.


Negotiating the Move

An assessment of the facts and law will assist in determining the viability of the requested relocation. However, notwithstanding the strength (or weakness) of your case, often a relocation can be negotiated if due regard is given to the concerns of the noncustodial parent, and genuine effort is made to address those concerns. Courts have looked to a parent’s “willingness to . . . encourage and provide frequent and meaningful contact between the child and the other parent” in determining whether to allow a move. Zepeta v. Zepeta, ¶14, 2001 S.D. 101, 632 N.W.2d 48. In addition to maintaining contact between the child and the noncustodial parent, there is the issue of scheduling time for the noncustodial parent to spend with the child. Some custodial parents opt to allow the other parent to spend Thanksgiving, Christmas, and/or spring break every year with the child, along with all or most of the child’s summer vacation. A related consideration is that of transportation costs. Depending on the distance involved and the number of children, travel costs can be significant. If the parent wishing to move can pick up more of these costs to ensure more frequent contact, the noncustodial parent may be more amenable to the relocation.


There are, of course, two sides to every relocation case. Both sides require a thorough analysis of the case law, an understanding of local procedures, and detailed knowledge of the facts of the case as well as skillful advocacy in meeting the needs of our clients and their children in any relocation case.


Questioning Motives

Determining the true motives for or against a move is sometimes difficult. Following are some sample questions to help you assess the parents’ motives.


1. How have you and the other parent gotten along since the last custody order was entered?

2. What will the other parent tell the judge is the reason for your move (or—what will the other parent tell the judge is the reason that you are opposed to the move?)

3. Do your friends and family support or oppose the move? Why?

4. If your friends or family are called to testify by the other parent, what will they say is the reason for the move (or your opposition to the move)?

5. How and when did the idea of the move first come up?

6. Whose idea was this move?

7. What does your new spouse say about the move?

8. What have you told your children about the upcoming move?

9. Have you told the children how the other parent feels about the move? Why or why not?

10. How do you expect this move to affect you financially?

11. If you were the other parent, what would be your proposal under these circumstances?


Parental Involvement

A parent’s involvement in a child’s life is a critical factor for the court in deciding whether a parent will be allowed to move the child. You should assess the involvement of both parents in the child’s life, recognizing, of course, that the noncustodial parent may have less opportunities to be involved so both quantity and quality are important considerations. Following are some sample questions you may want to pose to determine the level of parental involvement.


1. Describe a typical week in your household as it relates to the time you spend with your child.

2. How many teacher conferences did you attend last year? And how many did the other parent attend?

3. How many extracurricular activities of the child did you attend? And how many did the other parent attend?

4. What is your child’s favorite/least favorite subject in school?

5. Who is the child’s favorite music artist/ movie star?

6. Who does the child see for dental care and medical care? Who takes the child to appointments?

7. If the child is in day care, who is the day-care provider and how many children are in day care?

8. What does your child want to do after high school?

9. Does your child work; who is his or her boss?

10. Does your child have a boyfriend/girlfriend?

11. What are the restrictions on seeing the boyfriend/girlfriend?

12. Does your child drive?

13. What are the restrictions on your child’s use of his/her car?


Additional Questions for Nonprimary Custodian

14. How often do you talk with your child on the telephone?

15. How often do you see your child?

16. What do you do with your child when you are the custodian?

17. Who is your child’s best friend?

18. What are the names of your child’s teachers?

19. How do you keep abreast of how your child is doing in school?

20. What size clothing does your child wear?

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.

Linda Lea M. Viken

Linda Lea M. Viken is a principle in Viken Law Firm in Rapid City, South Dakota. She has practiced family law for 28 years. She is a Board Certified Family Law Trial Advocate by the National Board of Trial Advocacy and is currently vice president of the American. She is chair of the Family Law Section of the South Dakota State Bar Association.