It is astounding how many Americans move each year. Data from the American Community Survey shows that between 2015 and 2020 over 40 million Americans will have relocated each year. According to census data, an estimated quarter of Americans who move are mothers with custody of their child or children. They are also moving within four-years of a divorce. When a parent moves with their child, custody disputes are common. The relocation custody case is a term used to describe relocations that include a custody dispute. Between 1996 and 2006, relocation custody cases were significantly more common in trial and appellate courts as parents tried to move their families.

How can I prepare for a successful relocation case?

In order to prepare properly for a relocation custody case it is important that attorneys are familiar with the state and federal statutes governing relocation custody, as well as the procedures that must be followed. Lawyers must also fully appreciate and understand the policies behind laws on relocation, including the reasons why they are intended to serve and protect the best interests of the child. They should also be familiar with the trends in how judges usually rule on relocation cases.

Relocation Custody Cases: Fundamental Rights

The Federal Supreme Court has recognized two fundamental rights in relocation cases. These fundamental rights are important in the judicial decision making process regarding relocation custody cases.

The rights of every human being are:

Parents have a fundamental right to care for, control, and custody of their children.

The courts must apply the “best interests of the child” rule when awarding custody to parents who have divorced or are living apart.

It is the fundamental right of US Citizens to freely travel between states. This right is a broad one that covers not only the freedom to travel in itself, but also the freedom to move or settle in another state and to establish a new home and life.

This right is in contrast to the first right fundamental. It requires the courts to be more careful when removing custody of a parent who has relocated, simply because they have made the decision to do so.

Parties to a Relocation Custody case

In a case of relocation custody, the parties are the parents. In most custody cases, the parents involved are former spouses who have divorced. The court has likely already issued a custody decree or order in favor of the other former spouse. These parties are known as:

The “Residential Parent” is the parent with physical custody of the child. As a result, he or she has the right to live with the child.

The Non-Custodial Parent or “Non Residential” Parent is the parent that does not have physical custody of the child and therefore has no rights to the child living with them.

Common Procedures for Relocation of Custody Cases

Most relocation custody cases occur after an initial custody order is made in another civil matter, such as in divorce proceedings or domestic violence cases.

The relocation custody case usually begins with a motion, or relocation request, filed by the parent who has primary custody to the court. This seeks permission for the child to move. The filing of a request for relocation does not always result in the noncustodial parents being informed and notified of the plan to move. In order to comply with this requirement, some states require the custodial parents to file an official notification within the specified time frame (the state may specify “within reasonable time” but it could also be 60 days). The notice must be sent to the noncustodial parents and/or other individuals who are granted access to children by a court order, such as grandparents.

The court will hold a hearing if, following the receipt of the notice, the custodial parents object to the plan to move. If the non-custodial parents does not object within a reasonable time after receiving the notice, then several state statutes allow relocations to take place without hearing.

If a noncustodial or challenging parent objects or challenges the decision made by the custodial or demanding a change of custody, then the question is no longer the relocation but whether or not the original court order or decree awarding custody to custodial or challenging parent should be changed.

In these cases, the non-custodial parents first burden is to ask the court to reopen their case and hold an hearing to determine if the original custody of the child should be altered at all. In order to do this, the noncustodial parents must demonstrate that a material or substantial change in circumstances has occurred since the original decree. The non-custodial parents must prove that the change in current custody arrangements is in their child’s best interests if the hearing is granted.

The burden placed on the noncustodial parent can be further complicated by the question of whether a “material change in circumstances” is sufficient to warrant an initial hearing. In some states the mere fact that the parent with the primary custody has relocated or plans to move already qualifies as a “material or significant change of circumstances”. This will warrant a hearing. In some states, however, the mere act or plan of relocation is not sufficient to constitute a “material change in circumstances” that will justify a hearing.