This is Todd Burnham, the Founding Partner of Burnham Law, and an experienced family law lawyer with a superb record. In this post, I tell you your options when your ex is considering moving out of State.
What to Do if Your Co-Parent Wants to Move Out of State
Divorce proceedings are inherently complex and complicated for both parties, most especially if there is a child involved. Naturally, the courts will determine who gets custody of the child depending on the facts of the case and the best interest of the children.
In normal circumstances where both parents are living in the same State, the custody arrangement will govern:
- Legal Custody, which refers to the right to make important decisions about a child’s health, education, and welfare.
- Physical Custody, which determines who will keep, supervise, and care for the child.
A parent who is awarded custody is the one that the child lives with, while the other parent is granted visitorial rights.
But what if the parent who gets custody wants to move out of State? Is there something the other parent can do?
Absolutely. But it will be much easier for you if you bring this issue to the court before the final decree. As you probably already know, changing a custody arrangement once it’s been settled by the court is very difficult.
Pre-Decree – Spahmer v. Gullette.
Spahmer v. Gullette is a case that is often referred to when it is discovered before the decree that one of the parents is planning on moving out of State.
Here, the court ruled that the location in which each party intends to live must be accepted and taken into consideration. Parental responsibilities should be allocated accordingly. The decision should be in the best interest of the child. It depends on several factors, including the presence of abuse by one parent and how actively involved they are in rearing the children.
If one parent is abusive, then the other will most likely be granted custody even if they decide to move out of State. If both parents are actively involved, it will be harder for the court to determine which parent gets custody. But ultimately, they will decide on whichever is best for the children.
The key here is to establish the best interest of the child. Which parent can more properly perform parental duties? Which parent is more qualified to take care of the child? Will moving out of State, even if affecting the geographical location between the child and the other parent, be in the child’s best interest? These are some questions that the court will take into consideration and the answers to which will help them decide accordingly.
Post-Decree – Re: the Marriage of Ciesluk
In the instance that the plan to move out of State is discovered after the decree, the governing case law will be Re: the Marriage of Ciesluk.
If the divorce case has been finalized, and the parental responsibilities have been allocated before the parent granted custody decides to move out of State, the procedure will be completely different.
The court will look at what is in the best interest of the child, and each parent has an equal burden of demonstrating what that is and how they can provide it. The court should look into all factors to decide what is best for the child.
What You Can Do
There is always something you can do to prevent the other spouse from moving out of State with your child. But you need to have all the facts that will prove that moving will not be in the child’s best interest.