It can come as quite a shock to divorced or separated parents when they realize they have no right to move their children out of state -- at least if they intend to leave the other parent behind. Although state laws differ in their finer details, courts are vested in making sure that children have access to both parents.
Permission to Relocate
Laws exist at both the state and federal levels to prevent you from simply packing up with your kids and leaving the jurisdiction where you and their other parent have been living. At the state level, most jurisdictions will let you move with your kids as long as you don’t go too far -- you must stay within 50 or 60 miles or within the state’s borders. If you want to move further than that and your ex is in agreement, the two of you can usually sign a consent agreement and file it with the court. Otherwise, most states require that you file a petition seeking a judge’s permission to relocate. Your ex has a window of time in which to object to your request. If he does nothing, you can usually go.
What the Court Will Consider
If your ex objects, you’ll most likely end up in court for a trial. The burden of proof may be on you to establish that it’s in your kids’ best interests to move. In some states, however, your ex would have the burden of proof to establish that it would hurt your kids if you were permitted to take them away. The judge will probably want you to propose a new parenting plan, showing how you’re going to ensure that your children still see your ex a satisfactory amount of time. The judge will want to determine why you’ve decided to move. If he thinks you’re doing it in an attempt to shoehorn your ex out of your children’s lives, you probably won’t be permitted to go. If you have a great job offer or have extended family where you’re moving so the quality of your lives will improve, this would normally work in your favor. It might also work in your favor if your ex has a spotty history with exercising visitation. If he doesn’t live nearby to begin with, this would obviously make the situation much easier. You wouldn't be denying your kids contact with him by moving.
If you don’t yet have a divorce decree or custody order in place, federal law becomes involved. Under the terms of the Uniform Child Custody Jurisdiction and Enforcement Act, your children must live in your new state for six months before you can ask the court there for a custody order. Until that time, your old state retains jurisdiction over your kids so your ex can file a suit there for custody, even though you’ve taken them elsewhere. The home state court -- where your ex is still living -- has the power to order you to bring the kids home. If your ex does nothing, you can ask for a custody order in your new location after six months have passed.
The UCCJEA includes a provision for emergency situations. If you or your children are in danger, such as because of issues of abuse, you can leave and ask your new state to take temporary emergency jurisdiction without waiting out the six months. Temporary is the key word. The court in your new location can make orders to protect you, but it must establish a line of communication with your old state if you have a custody order or decree that originated there. Otherwise, if you don’t have a custody order and your ex doesn’t open a case in your old state to get one, your temporary emergency custody order becomes permanent after your children have lived in the new state for six months.
- U.S. Department of Justice: The Uniform Child Custody Jurisdiction and Enforcement Act (PDF)
- Online Sunshine: 2014 Florida Statutes, Title VI, Chapter 61, Section 61.13001 - Parental Relocation With a Child
- American Bar Association: Relocation of the Custodial Parent -- a State by State Survey (PDF)
- DivorceNet: Child Custody and Relocation Laws in Oregon
- Photo Credit altrendo images/Stockbyte/Getty Images
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