Parental Relocation (''Move-aways'')

“Move-away” cases are when one parent is relocating their residence a substantial distance, and wants to take the child with him or her.

Stability and continuity together are a very large factor in the determination of child custody. This factor is further elevated when the child has lived with one parent for a substantial amount of time. And it is held to be of great importance in “move-away” cases.

In a case where the parents have joint physical custody, the nonmoving parent can seek a change of custody to prevent the relocation of the child. However, in order to change the custody, the nonmoving parent must establish that said change of custody will be in the best interest of the child.

In a case where the one parent has sole physical custody, and is trying to move away with the child, the noncustodial/nonmoving parent can seek a change of custody to prevent the relocation of the child. However, in this situation, the noncustodial/nonmoving parent has the burden to demonstrate that the relocation would be determinantal to the child. Moreover, the court must determine whether changing the custody to the non-custodial parent is in the child’s best interests. Therefore, when a parent is attempting to prevent the relocation of their child in a case where they do not have joint physical custody, the noncustodial parent has the twin burden of establishing the relocation would be detrimental to the child, and transfer of custody to him/herself would be in the child’s best interest. Although the custodial parent proposition to move the child does not necessarily trigger a change in circumstances which would require a court to reevaluate a custody order, the court will still look at the impact it will have on the child’s and noncustodial parent’s relationship to determine if the proposed move would be detrimental to the child.

In all “move-away” cases, the court has to always consider which custodial arrangement is in the child’s best interest. However, a good faith reasoning or intention by the moving parent to move does not justify a change of custody. Moreover, if there is an existing custody order that mandates the custodial parent to receive either the other parent’s approval or a court order, prior to relocating his or her child, the custodial parent carries the burden of making a good faith showing, while the non-custodial parent has the burden of showing the relocation would be detrimental to the child.

The Court has held that when making determinations regarding custody changes and out of state move-away, the trial court must consider the child’s interest in stability and continuity of their current living situation, arrangement and relationships. For example, in a case where the noncustodial father lives in the same city or neighborhood as the custodial parent, and the non-custodial father frequently visits his son and has established a close, nurturing bond with his son, the Court will consider the child’s interest in having this stable and continuous rapport with his father, and the detriment that moving away would cause to this rapport.

When determining whether the arrangement of the parents falls under sole or joint physical custody rules, courts look at the reality of the arrangement rather than a previous order’s terms. For example, a mother who has the child 85% of the time can be seen as the primary physical custodian, even though a judgment can call the arrangement a “joint physical custody.”

Furthermore, the Court can use the “best interest of the child” standard in making its initial custody order when there is not already a judgment in place.

Patrick Baghdaserians is well-versed and experienced in protecting the parent’s relationship with their children. Patrick has successfully argued countless cases in determining that the maintenance or modification of a custodial arrangement was of the utmost best interest to the child(ren).

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