Can My Ex Move Our Kids Out of the State?

General Information on Out of State Relocation of Children

When parents go through a divorce, they will be tasked with creating a custody agreement the courts will consider in the best interest of their children. These arrangements will outline both the legal and physical custody the parents will share. Legal custody includes who will make important decisions about the children’s education, health, and overall welfare. Physical custody is who will have the children living in their home and be responsible for supervising and caring for the children.

While having joint legal custody is common, giving parents equal right to make important decisions, physical custody of children often varies from one situation to the next based on the couple’s circumstances and state law. In some cases, the primary custodial parent has a desire to move to another state with the children – if the non-custodial parent does not give permission to do so, likely because it will reduce visitation time, the custodial parent will need to go to court to ask a judge.

Information on Child Relocation Laws

Courts refer to the above mentioned situation as a “move-away case,” and these types of custody battles are often very difficult to decide. In most states, a children cannot be moved from their state of residence without permission from the non-custodial parent and/or the court in which the original custody agreement was decided. Should the custodial parent move the child without this permission, her or she can be punished by being charged with contempt of court, which may include a fine and/or jail time.

Is Court Permission Always Needed to Relocate a Child?

A move-away or child relocation order must always be approved by the court. There are generally two ways in which this can be done – either by both parents entering a consent to relocation or if the custodial parent petitions the court for permission. When both parents agree to the out of state relations, they can sign a written agreement, known as a stipulation and consent agreement, which the judge then turns into a court order when it has been approved.

In the situation when the non-custodial parent does not agree to the move, both parents can hire a mediator or co-parenting counselor who is trained in child custody issues. Having these professionals mediating the conversation can help the parents come to an agreement outside of court without having to go through another case. If this mediation should fail, the custodial parent can petition the court to grant the request to relocate the children without the non-custodial parent’s permission.

How Do Courts Makes Decision on Child Relocation?

Every state has its own unique set of legal factors that play into making a decision about child relocation. Generally, the court will weigh the benefits of allowing the move against the disruption of the non-custodial parents visitation time, making sure to keep the children’s best interests in mind. Relocation is strongly considered when the move will benefit the child’s quality of life in ways such as the custodial parent securing a better job, moving into an area with better educational opportunities, the custodial parent entering into a new marriage to restore the family structure, or moving closer to extended family.

It is the court’s job to weigh the benefits the child will experience against the disadvantage of losing visitation time with the non-custodial parent. They will also need to take their local state laws around child relocation into consideration. Some experts believe that increased stability in the children’s day to day lives is more beneficial than keeping the same contact with the non-custodial parent. A custodial parent should always consult with a family law attorney when it comes to child relocation.

It is also important to note that some states consider the custodial parent to naturally have the right to move the children wherever they please. This means that in those states, the burden falls on the non-custodial parent to prove to the court why the out of state move would not be beneficial to the child. Again, this is where an attorney who is experienced in family law and child custody cases will be beneficial – these professionals can help the non-custodial to build a case against the child moving.

Is a Lawyer Needed if Parents Agree Upon the Move?

In the case that both parents agree to the out of state move, whether through their own conversations or a mediation session, they should still hire a family law attorney to help them submit the acknowledgement of consent. Also, should the parents not agree on the child relocation, having an attorney is crucial. This professional will be able to help protect your rights as either the custodial or non-custodial parent and will help to make sure your interests in the situation are represented.

What about Temporary Child Relocation?

In some cases, the custodial parent has a need to relocate the children but only for a set amount of time. This could be due to an out of state job opportunity, family situation, or extended vacation. In this case, the custodial parent would still want to discuss permission with the non-custodial parent either on their own or in mediation to come to an agreement. Should the non-custodial parent not agree, the custodial parent would need to follow the same process to petition the court for permission to move.

Since this is a case of temporary relocation, it is possible for the court to be more willing to grant permission. The only stipulation may be making time to bring the children back to the home state in order to visit with the non-custodial parent. Also, depending on the situation, it may be possible for the custodial and non-custodial parent to arrange residential custody – this would mean that the non-custodial parent would retain custody of the children while the custodial parent is out of town.

What if the Non-Custodial Parent Moves and Affects the Custody Agreement?

If the non-custodial parent’s relocation affects the custody agreement they will need to seek permission from the custodial parent to do so. For example, if the non-custodial parent watches the children while the custodial parent works, moving over 30 minutes away may make exchanging the children difficult. In these cases, when the non-custodial parent has permission from the custodial parent, he or she can go back to court to modify the custody agreement to better fit the new living situation that has been created.

Can the Non-Custodial Parent Force the Custodial Parent to Move Back?

In some cases, the non-custodial parent may give permission for the out of state move and sometime later requests the custodial parent to return with the children. This can be a tricky case to handle and, should this situation come about, the help of a family law attorney will be needed. Depending on the length of time the custodial parent has been relocated, it may be impossible for the non-custodial parent to force them to move back. Always make sure you retain legal counsel in these situations.

Family court takes the well-being of the children very seriously and will always evaluate heavily what is in their best interest when making a decision about out of state relocation. Should the move have benefits for the children, such as the parent having a better income, being closer to extended family, or being closer to needed medical care, chances are the relocation will be granted without the non-custodial parent’s permission. Having a knowledgeable family law attorney can help make the process easier.

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