Can I Stop My Former Spouse from Relocating with the Children?

By Brenda L. Storey, Esq.

Post-decree, after an initial parenting plan has been implemented, the parent with whom the children reside a majority of the time may seek to relocate with the children.   We have a statute for that.

The applicable law is controlling whether the proposed move of the children is out of state, or in state if it will “substantially change the geographical ties between the child and the other party.”  Such a move first requires the moving parent to provide the other with written notice of his or her intent to relocate with the children.  The notice must be given as soon as practicable, and at a minimum must include notice of the proposed new location, the reason for relocation, and a proposed parenting plan.     If agreement cannot be reached, then permission from the court is required.

When addressing a post-decree request, there is no presumption in favor of the majority time parent.   Instead, both parents share equally the burden of demonstrating to the court how the children’s best interests will be served—staying with the majority time parent in a new location, or staying in the same location with the previously non-majority parent.

The statute requires consideration of the following specific relocation factors:

1.      Reasons for the intended relocation;

2.      Reasons why the opposing party is objecting to the proposed relocation;

3.      The history and quality of each parent’s relationship with the children since previous parenting time order;

4.      The educational opportunities for the children at the existing location and at the proposed new location;

5.      The presence or absence of extended family at the existing location and at the proposed new location;

6.      Any advantages of the child remaining in the primary care of the majority time parent;

7.      The anticipated impact the move will have on each of the children;

8.      Whether a reasonable parenting time schedule can be fashioned if the change requested is permitted; and

9.      Any other relevant factors bearing on the best interest of the children.

As indicated, these cases are very fact specific, and the parent seeking to move with the children must do his/her homework in advance.  If the relocation is permitted, the two-home parenting plan must be crafted in the children’s best interests.  Depending on the age of the children, this can be complicated for varying reasons.  Too young of children cannot be away from the majority time parent too long at a time, and they must be accompanied by an adult if the travel mode is airplane.  Older children can come to resent interference with their life, their friends, and their activities by having to spend school breaks away from their primary world and with the non-majority time parent.  There is no perfect answer for these kinds of scenarios, and the needs of each child, and at different stages, need to be considered.