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If I want to move out of state with my children, can I?

By Adam T. Kronfeld of Duff & Kronfeld, P.C. posted in Family Law on Monday, February 11, 2013.

There is no easy answer to this question. Any judge or family law attorney will tell you that among the most difficult matters they face in the family law arena is a desire by one parent to relocate with minor children.

If there is no written agreement between the parents, or court order that specifies the parents’ respective custodial rights, then, strictly speaking, you each have equal and unrestricted custodial rights to the children. Either of you could, in theory, relocate with the children across town, across the country, or across the globe. However, should one of you do that, it is conceivable, even likely, that a court in the jurisdiction that you moved away from could, if asked, require you to return the children until it has decided who should have custody, what the parents’ respective visitation rights should be, and, perhaps more specifically, whether a parent should be able to relocate with the children on a permanent basis.

If custody and visitation have already been established, either in an agreement or in a court order, then you cannot relocate with your children without first giving the other parent at least 30 days advance written notice that you intend to move and where you will be moving to. If the other parent objects to the children moving away, then he or she will likely ask the court to prohibit you from relocating with the children. In some courts, you may have the obligation yourself to file a motion to modify the custodial arrangement to permit your move even after giving the requisite notice to the opposing parents. In that case, you will have to demonstrate to the court why it should allow the children to move. You will have to prove to the court’s satisfaction that the move is in the children’s best interest, and that the move does not unjustifiably harm the other parents’ relationship with the children. As you might suspect, the further away you intend to move with the children, the more substantial the impact will likely be upon the other parents’ access to the children. Depending on your particular circumstances, that may make it harder to convince a judge that will not have an unduly negative impact on children.

The decision by a judge on a relocation issue is highly fact-specific. Circumstances that can impact a judge’s decision, in addition to the various factors the court must consider in all custody cases, may include but are not limited the strength of the relationship between the children and the noncustodial parent, financial advantages to the custodial parent and children upon a relocation, the psychological impact on the children, the relative academic opportunities for the children, the stability of the custodial parent, and peer and extended family relationships the children have and will have. Expect that you will have to show a judge very concrete advantages to your children in relocating.

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