Following a divorce or separation parents who have minor children must decide how legal and physical custody will be shared. Child custody arrangements vary but include both physical custody, which determines where the child will reside and who will be responsible for supervising the child, and legal custody, which determines whether both or one parent will be involved in making the important decisions about a child’s health, education and welfare. Recently on our divorce forum a parent asked, “If I have been given physical custody of my child can I make an out of state move or do I have to ask the court’s permission?”
Out of state move after a divorce
Although state laws vary, if you have been awarded joint or primary custody of your child you will generally have to get the court’s permission for an out of state move. Failure to get the required approval for an out of state move can result in a court sanction or an order of contempt, which can include fines and jail time. Even if the non-custodial parent agrees to an out of state move, it is important to formalize the decision with the court.
When will the court allow an out of state move ?
In most states, as mention above, the court must issue a court order and the other parent must agree to the out of state move. For the court to issue a court order allowing the out of state move they will have to have evidence that the move is in the best interest of the child. To make this decision they will review several factors:
- The age, needs of the child, and the impact of the relocation on the child’s physical, educational, and emotional development.
- Is the other non-custodial parent involved in the child’s life and if so to what extent?
- Can the relationship between the non-custodial or non-relocating parent be maintained financially and logistically?
- What is the maturity of the child and what is their preference?
- Is the move an attempt by the moving parent to thwart the relationship of the other parent and the child?
- Will the move benefit the child and the relocating parent financially, emotionally or educationally?
- Why is the parent asking to relocate?
- Will the move improve the safety and the welfare of the child?
The above listings are general considerations the judge may consider prior to issuing a court order for an out of state move. There are different considerations if there has been abuse in the relationship or if the non-custodial parent was not granted visitation or any custody benefits at the time the child custody order was issued. The custodial parent may also have more freedom to move if the couple was not legally married, there was never a custody order issued, or the other parent has not had any contact with the child.
Common reasons an out of state move is allowed
Although state laws vary, courts have allowed out of state moves in several cases such as the custodial parent has been given a new job, they remarried and are joining their new spouse, they have a new educational opportunities, or they are moving closer to their immediate family for additional support.
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