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Post-Divorce Relocation and Child Custody

The issues surrounding the relocation of custodial parents requires significant attention in today's mobile society. Almost two-fifths of divorced women move in the first year after divorce. This rate is nearly seven times the rate of married women, and it is important to remember the majority of these relocation decisions are motivated by necessity rather than choice.

In the past, the decision to relocate almost automatically placed the custody of the children at risk. Non-custodial parents, moving for a change in custody, often argued successfully that a move would significantly and detrimentally affect the best interests of the child by depriving the child of the benefits of two accessible parents.

Unless the former spouse consented to the relocation, the burdens of litigation and delay imposed on the custodial spouse seeking to relocate sometimes seemed greater than the difficulty imposed to relocate a criminal subject to probation or parole supervision. Currently, however, the trend is to allow relocation as long as it is not motivated by the desire to deprive the non-custodial parent of parental contact.

Nevertheless, it remains critical for both the custodial and non-custodial parents to understand the factors that the courts will consider when entertaining a motion to change custody based on plans to relocate. In its 1996 decision in In re Marriage of Burgess (13 Cal.4th 25 , 51 Cal.Rptr.2d 444; 913 P.2d 473), the California Supreme Court held that a custodial parent had a presumptive right to change a child's residence as part of "the ordinary needs for both parents after a marital dissolution to secure or retain employment, pursue education or career opportunities, or reside in the same location as a new spouse or other family or friends."

In the case of Burgess, the California Supreme Court found that a change in location did not necessitate a change in custody. Although changes in visitation may be the unavoidable consequences of a move, they did not presumptively defeat a change in location.

Kentucky courts have also reduced the hurdles over which a custodial parent must jump in order to relocate and retain custody. In Wilson v. Messinger (840 S.W.2d 203 (Ky. 1992), a non-custodial father moved for modification of custody after the custodial mother proposed to move away from the community in which the father lived.

In Wilson, the Kentucky Supreme Court held that the requirement governing a change in child custody was not met by the non-custodial parent's and the child's objection to the move which were combined with assertions of a certified social worker that the child suffered from stress associated with the pending move. Quoting the Kentucky Appellate court in Wilcher v. Wilcher, Ky. App., 566 S.W.2d 173 (1978), the Wilson opinion stated that "a custodial parent cannot, in today's mobile society, be forced to remain in one location in order to retain custody."

Even the courts recognize that it is unrealistic to daily micromanage a family. Given the importance of the stability of custodial relationships and visitation, persons resolving a divorce should try to anticipate possible relocation.

The language in your divorce agreement should address this very important issue, even if a relocation is not immediately on the horizon for either parent.

See also, the American Academy of Matrimonial Lawyers article entitled Model Relocation Act, which seeks to provides guidance for state legislatures addressing the difficult issue of relocating children after divorce.