Moving Out of State and Joint Custody

By Kay Bosworth
A divorced parent may need the court's permission to move.

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Americans are a mobile society, and people move all the time, seeking better housing and job opportunities, desiring to be closer to family or simply looking for a different lifestyle. According to a report in the Journal of Family Psychology, people are likely to move after a marriage has failed. A quarter of the mothers who had custody of their children had moved to a new location within four years of the dissolution of the marriage.

State Laws

While a single person or a divorced person with no children can move at will, a divorced parent with children must usually seek the approval of the court to move away with the children. States have different laws about whether the custodial parent must get permission from the ex-spouse or the court before moving with the child, with case laws tending to favor the parent wishing to relocate. Where parents have joint legal custody, they have equal rights and responsibilities for the child's health, education and religious upbringing, but one parent generally has physical custody. Where parents have joint physical or shared custody, the courts might view a relocation request as if it were a request for a change of custody, especially if the relocation destination is far enough away to make shared physical custody impossible. If the custodial parent moves out of the state with the children, the Uniform Child Custody Jurisdiction and Enforcement Act gives jurisdiction over custody issues to the state where the child lived with one or both parents before custody was awarded.

Disputes

Legal disputes come up when one parent objects to the custodial parent's plans to move and take the child. Some states require that the custodial parent notify the other parent, in writing, of plans to move. The non-custodial parent can file an objection in court. The custodial parent may wish to move because of a new job. She may be planning to marry again, her new spouse may need to relocate or she may wish to be closer to her relatives. The court must decide between the custodial parent's desire to change her circumstances against the desire of the non-custodial parent to maintain contact with his children. If a judge finds that relocating would be harmful to the child, he can deny the custodial parent permission to move with the child. Violation of such a court order could have serious consequences.

Distance

While a long-distance out-of-state move will disrupt the customary weekly visitation schedule, a proposed move within the same city or general area would not interfere with the other parent's visitation and generally wouldn't require permission. If the non-custodial parent has been lax about visiting with his children in the same city, a change in the other parent's local residence should not be a hardship.

Burden Of Proof

Courts generally cannot order a custodial parent not to relocate. They can, however, render that decision about minor children in the parent's custody. Some states require that the parent with custody must prove that the relocation serves the best interests of the children, while elsewhere, the non-custodial parent must prove that moving will be harmful to the child. Parents may have relocation specifications written into their divorce decrees, specifying how far the children can be moved and what notifications will be required. If it is the non-custodial parent who has moved away, different arrangements must be made for visitation, possibly with children spending school holidays and summer vacations with that parent.

About the Author

As a long-time newspaper reporter and staff writer, Kay Bosworth covered real estate development and business for publications in northern New Jersey. Her extensive career included serving as editor of a business education magazine for the McGraw-Hill Book Company. The Kentucky native earned a BA from Transylvania University in Lexington.