When a parent considers relocating to another state with a minor child, this may have a substantial impact on the child and on the child's relationship with the non-relocating parent. If the relocation moves forward, certainly adjustments may have to be made to any child visitation or access schedule to maintain the child's ongoing relationship with both parents. Changes brought about by the relocation of a parent may, in a given case, be sufficient to justify a change in child custody. The result depends upon the circumstances of each case. The issue of stability may cut both ways in such a determination. For example, continued custody in the parent who is the primary caretaker would offer an important form of stability in the children's lives. However, permitting the children to remain in an area where they have always lived, where they may continue their association with their friends, and where they may maintain frequent contact with their extended family also provides a form of stability. Parents must also be very careful about the potential negative consequences of an attempted secretive move, because it has been held that the surreptitious relocation of a custodial parent in such a manner as to preclude all visitation to the other parent was sufficient to support a change in custody. One factor to be considered in a custody decision is "potential for maintaining natural family relations." Thus, a parent's unwillingness to foster a good relationship between a child and the other parent is an important consideration in a relocation case. If a parent moves to a distant state, it would be easier to undermine the other parent's relationship with the child, and it would be harder for the parent left behind to overcome this obstacle. Court Ordered Advance Notice of Relocation. In any custody or visitation proceeding the court may include as a condition of a custody or visitation order a requirement that either party provide advance written notice of at least 90 days to the court, the other party, or both, of the intent to relocate the permanent residence of the party or the child either within or outside the State. FL § 9-106. The statute permits the court to waive any required notice if it is shown that notice would expose the child or a party to abuse or for other good cause. Additionally, if a party is required to relocate in less than the specified 90-day period in the notice requirement, then in any action brought for such notice violation the court may consider as a defense that: (1) relocation was necessary due to financial or other extenuating circumstances; and (2) the required notice was given within a reasonable time after learning of the necessity to relocate. Moreover, the court may consider any violation of the notice requirement as a factor in its merits determination of custody in any subsequent custody or visitation proceeding.
Some Practice Considerations
Relocating Parent's Perspective: Focus on demonstrating some compelling reason for the move, the benefits for the children at the new location, the particular close bond between the relocating parent and child, and the accommodations that would be made to maintain the parent-child relationship with the parent left behind. Some questions or factors to consider: (1) Has relocating parent complied with any advance notice requirements contained in any written agreement or court order? Are there financial or other extenuating circumstances excusing the failure to comply? If there was technical non-compliance, was notice given within a reasonable time after learning of the need to relocate? (2) Is there some compelling reason for the parent's move, such as remarriage and new spouse is required to move as a condition of employment (e.g., military station, job transfer), or the relocating parent has exhausted local job efforts and the relocation is necessary for her to pursue suitable employment; (3) Moving parent can demonstrate the benefits to the children at the proposed new location, such as geographical proximity to supportive extended family, improved school situation or community, much lower living expenses; (4) Relocating parent is not primarily seeking to undermine child's relationship with the parent left behind, and relocating parent is willing to accommodate the other parent to provide frequent and extended time for the other parent to spend with the child (e.g., substantial share of school vacation periods); (5) Assess the parent left behind's involvement prior to the intended relocation; for example, if the parent has visited once a month or every other weekend with no mid-week visits, then a move a couple hundred miles away may not disrupt the non-custodial parent's opportunity to visit (albeit there may need to be some shared transportation accommodation).
Perspective of Parent Opposed to Relocation: Emphasize the prospering parent-child relationship that would be ruptured by the move, the factors showing the child's best interest to remain, and any questionable motives of the relocating parent. Questions and factors to consider: (1) Has relocating parent failed to comply with any advance notice requirement, or acted in a deceptive or secretive manner? (2) Has relocating parent exhibited a pattern of interference with non-custodial parent's access, or otherwise undermined the parent-child relationship? (3) Non-custodial parent can show parent's full participation in child's life and development, such as school, medical, extracurricular activities; (4) The child would benefit from remaining in current situation, such as continued attendance at excellent school that is not available in prospective location, special programs to meet special needs, etc.; (5) The child has close relationships with friends, therapists, coaches/tutors, extended family in the current location; (6) The relocation will make visitation financially impracticable, and may pose logistical barriers such as a young child flying cross-country.
Some Additional Considerations
In assessing child's best interest, it is particularly important to be receptive and responsive to the "child's voice" and appropriately insure that the parents and court know the child's preferences and desires. Consideration should be given to appointment of a Best Interest Attorney for the minor child or custody evaluation or assessment.
The American Academy of Matrimonial Lawyers(AAML) Proposed Model Relocation Actprovides some factors for a court to consider in making a decision about a proposed relocation §405: "(1) the nature, quality, extent of involvement, and duration of the child's relationship with the person proposing to relocate and with the non relocating person, siblings, and other significant persons in the child's life; (2) the age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child; (3) the feasibility of preserving the relationship between the non-relocating person and the child through suitable [visitation] arrangements, considering the logistics and financial circumstances of the parties; (4) the child's preference, taking into consideration the age and maturity of the child; (5) whether there is an established pattern of conduct of the person seeking the relocation, either to promote or thwart the relationship of the child and the non-relocating person; (6) whether the relocation of the child will enhance the general quality of life for both the custodial party seeking the relocation and the child, including but not limited to, financial or emotional benefit or educational opportunity; (7) the reasons of each person for seeking or opposing the relocation; and (8) any other factor affecting the best interest of the child."
The Comment to this section notes the difficulty courts may have in resolving the "dilemma" of relocation cases:"If the contestants are two competent, caring parents who have had a healthy post-divorce relationship with the child, the competing interests are properly labeled "compelling and irreconcilable." The child's custodian may have a compelling interest to move with the child, the noncustodial person may have a compelling competing interest in maintaining the relationship with the child, which may be significantly undermined by the move. The child has a compelling interest in stability -- both in the stability of remaining with the custodian and with maintaining frequent contact with the noncustodial parent. In sum, even a perfect list of factors, when applied to decide such a contest, will not resolve the dilemma, i.e., relocation often is a problem seemingly incapable of a satisfactory solution."
In May 2000, the American Law Institute adopted certain Principles of the Law of Family Dissolution: Analysis and Recommendations (Philadelphia: American Law Institute, 2003) (Website: http://www.ali.org ).Section 2.17 regarding "Relocation of a Parent" (Id., 354-385) states, in part, that "(4) . . . (a) The court should allow a parent who has been exercising the clear majority of custodial responsibility to relocate with the child if that parent shows that the relocation is for a valid purpose, in good faith, and to a location that is reasonable in light of the purpose. . . (ii) . . . the court should recognize any of the following purposes for a relocation as valid: (1) to be close to significant family or other sources of support, (2) to address significant health problems, (3) to protect the safety of the child or another member of the child's household from a significant risk of harm, (4) to pursue a significant employment or educational opportunity, (5) to be with one's spouse or domestic partner who lives in, or is pursuing a significant employment or educational opportunity in, the new location, (6) to significantly improve the family's quality of life. The relocating parent should have the burden of proving the validity of any other purpose. (iii) The court should find that a move for a valid purpose is reasonable unless its purpose is shown to be substantially achievable without moving, or by moving to a location that is substantially less disruptive of the other parent's relationship to the child."
Although neither the AAML Proposed Model Relocation Act nor the ALI Principles has been adopted in Maryland, they provide helpful factors to consider in assessing, preparing, and resolving any case involving parental relocation.
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John S. Weaver, Of Counsel
Z Family Law, LLC 51 Monroe Street, Suite 1501, Rockville, MD 20850