The Move-Away Parent

Initial custody orders work well when both parents try their best to comply with the parenting plan and court orders. This is especially true when parents live close to each other, cooperate, and jointly commit to their child’s growth and best interests.

This article covers the legal issues when a divorced parent relocates with the children, leaving the remaining parent behind with limited to no access to their children. 

Divorced Parent Moves Away With Child

In most cases, single parents are also working parents. Living close to each other means one parent can help the other parent when they’re in a bind for time, such as asking the other parent to pick up the child from school and prepare dinner.

But what happens when one of the parents receives a lucrative out-of-state job offer they can’t turn down? Even if accepting the job offer will mean taking their child with them?

Even among educated and well-to-do single parents, when one parent moves away and takes their child with them, it can strike at the emotional core of the remaining parent. What began as a cooperative parenting relationship can quickly turn into a highly contentious and expensive custody battle.

State laws differ regarding the relocation of parents

Many state jurisdictions require one parent to give advance notice and obtain permission from the non-relocating parent before the parent can relocate. Without the remaining parent’s consent, and if challenged, the family court must determine if a custody change is warranted.

Other state jurisdictions only require advanced notice of the relocation, except if the relocation is out of state. If so, the court must usually make a factual and legal determination of the issues before granting or denying a custodial modification.

Existing Custodial Relationship

Two types of custody:

Primary custodial parent

The custodial issue to be resolved by the court or mediator is first to determine which of the two parents, through their actions and care of the child, was, in fact, the primary custodial parent over the child. The inquiry can be a factual issue as well as a legal one.

Joint physical custody

For example, even if both parents were initially ordered to jointly share physical custody of the child, one parent will typically assume the role of the primary custodial parent. 

This could mean, for example, that the child resides with the primary custodial parent but spends weekends and school vacations with the other parent.

A Parent’s Right To Move Freely

A competing issue is the right of a single parent to move freely, especially when the reason for relocating is a job that would provide the child with a higher standard of living and education. For example, the child could attend private school, and the parent could save enough money for the child’s college education.

Remaining parent-child bond

A child’s higher living standard is essential but not the only one considered. For example, what might be the emotional consequences of the child being separated from one parent? 

These factors must be balanced with whether the nonmoving parent can maintain a solid parental bond with the child. If so, arranging a fair arrangement between both parents might be possible.

Seeking a Modification To The Existing Custody Order

Parents that are unable to resolve the custodial issue between themselves, the remaining parent may need to seek a modification to the current custody orders. 

In move cases, the move-away parent will have to convincingly demonstrate there has been a substantial change of circumstances to justify the custodial modification.

Parent Leaving State With Child In Violation of Law

Suppose a parent moves a child across state lines without permission and violates the law. In that case, the parent could face criminal prosecution, including being found in contempt of court, which includes fines and even imprisonment.

Suppose there is evidence that the child was taken against their will, or it is determined that the child suffered emotional trauma due to parental abduction. In that case, the parent can be facing federal kidnapping charges.

At the very least, if requested by the aggrieved parent, the court could decide to deny the offending parent physical custody and award the remaining parent with sole legal and physical custody.

Factors that help the court determine the actual circumstances

Much will depend on the factual circumstances surrounding the abduction. For example, did the abducting parent reasonably believe the other parent was:

• Engaging in dangerous criminal activity,
• physically abusing the child,
• emotionally abusing the child,
• addicted to alcohol and drugs?

Move-away scenario

Consider the following scenario:

Q: My brother lived in New Hampshire with his girlfriend for over five years. Under New Hampshire laws, cohabitation before emancipation was neither prohibited strictly nor enforced by the state. So, they never married.

My brother’s girlfriend has since left New Hampshire with their child. 

There should be some law that would allow my brother to see his children. They are both now over twenty years old. My brother wants to see his child, and the mother wants to receive child support.

A. Violating parental responsibility laws or not complying with the court-ordered child support agreement can have severe consequences for everyone involved. Failure to pay can result in the following types of state collection actions:

Court’s options:

• Wage garnishment
• Withholding your tax return
• Revocation of a driver’s license
• Attachment of your bank account
• Seizure of your real property

Divorce Lawyers

Should you have specific questions concerning the move-away parent’s rights and obligations or any of the issues presented, consult a verified Divorce Lawyer as soon as possible.