If you’re contemplating moving out of state with your child and you’re divorced or separated from his other parent, at least one law firm has a warning for you. Willing, Williams & Davidson, a Pennsylvania firm, puts its advice in big, bold letters on its website: “Don’t do it until you read this!”
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Why? Because you can end up with a lot of legal headaches if you don’t do it correctly. You might actually be charged with a crime – unlawful interference with parenting time. The court can’t tell you that you can’t move, of course. You’re an adult. But if you take your child with you, you might lose custody.
You Must Give Notice
Although the exact rules can vary by state, it’s pretty much a universal rule that you must give your child’s other parent a heads-up first. Many states require that you do so in writing. Kentucky requires that you do so within 30 days of your move.
New Jersey demands that you go one step further and give notice to the state or the local police at least 24 hours before you depart and that you make a statement regarding your reasons for relocating. Pennsylvania requires that you file proof with the court that the other parent received notice. Pennsylvania allows 60 days, but the bottom line is that you must give notice to the other parent.
Try to Get the Consent of the Other Parent
Now that non-relocating parent knows about your imminent move, one of two things can happen. He can agree to it, or he can object. If he consents, get it in writing and have the document signed and notarized. File a copy with the court. Some states require this, but it’s a good idea even if yours doesn’t. It can protect you in the event that your ex changes his mind and later decides that he didn’t agree.
Some states say that you have your ex’s permission if he doesn’t respond to your notice that you’re going to relocate within a certain period of time. Responding means that he notifies the court that he objects, not that he calls or emails you to express his feelings on the matter. His OK is implicit – saying nothing and doing nothing implies that he agrees to the move.
The rules for all this notice-giving can be complex, multi-faceted and vary significantly by state, so check with an attorney or legal aid in your area to find out exactly how you should go about it. Then follow the rules exactly.
You’ll Need A “Good Faith” Reason
Unfortunately, you’re headed to court if you can’t get your ex’s consent. You typically can’t relocate without either your ex’s OK or a court order.
The burden of proof usually falls on the parent who wants to relocate. In other words, you must convince the judge that he should let you move. Your child’s other parent has the right to refute your reasons and prove them wrong. Your burden of proof involves establishing to the court’s satisfaction that you have a “good faith” reason. You’ve been offered a great job in another state or your family support system lives elsewhere. Maybe you’re remarrying. These are all good faith reasons, but needing a changing of scenery is not. And it’s certainly not considered in good faith to move your child away because you want to remove your ex’s influence from his life.
The judge will look at several other things in addition to your reason for moving, such as whether there’s any history of combativeness between you and your ex over your child. This might indicate that you are trying to terminate their relationship. Of course, if your ex has had little or no contact with your child, the court will look at this, too, and it would generally work in your favor. The judge might even want to interview your child about his feelings regarding the move if he’s old enough.
So what happens if the judge decides after a hearing that you can’t relocate with your child? You can stay put, or the court will probably transfer custody to the parent who is not relocating.
How Far Away Are You Moving?
Another important consideration is how far you want to move. You might want to leave the state, but if you currently live on the Florida/Georgia border and you just want to move from one side of the state line to the other, this probably won’t create a lot of legal fuss. The issue is more about miles than about state lines, and this makes sense if you think about it.
Let’s assume that your ex has parenting time with your child twice a week. The two of you live 20 miles apart. If you move 20 miles farther away, this won’t affect your parenting plan too much. But if you move 800 miles, your ex will no longer going to be able to see his child twice a week, and this is the root of the problem and the reason for all these rules.
Even if your ex gives written consent for the move, you’ll most likely have to submit a new parenting plan to the court, one that accommodates your relocation. If you do end up going to court, part of your burden of proof will be to submit a new parenting plan demonstrating how your child and your ex can still share time together. At the very least, the judge will order new custody and visitation terms if he approves your move.
Consider a long stretch of weeks in the summer in lieu of twice-a-week visitation, as well as time during other school holidays. And don’t overlook long-distance communication like regularly scheduled telephone contact, webcams and emails. Decide who is going to pay for the transportation involved. Think outside the box and give the court as much detail as possible.