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What Happens If I Move Out of the State or Country with My Child?

move out of state

After spouses get a divorce, sometimes one spouse may desire or need to relocate to another state or country. This is permissible. Individuals in the United States are guaranteed the right to freely relocate and travel within the United States. Individuals are also free to travel or move abroad as their needs sees fit. But what happens if there is a child in the picture? In other words, what happens when one parent subject to a child custody and visitation agreement relocates the child to another state or country?

To start, most states require the parent with the child to receive permission from the other parent or from the Family Court, in some instances. The key question in examining if this “relocation” is appropriate is to evaluate whether the non-custodial parent’s visitation and decision-making participation in the child’s life would be significantly impaired. For example, if the custodial parent and the child live in New York state and the custodial parent desires to relocate with her child to New Jersey, the allotted visitation time would be only slightly affected. The non-custodial parent living in New York in this case would merely have to make an effort to travel to see the child in New Jersey, or the custodial parent would have to travel to New York so the child can spend the weekends with the non-custodial parent. Also, the non-custodial parent’s ability to participate in major decision in the child’s life would be minimally affected. The distance is not so great so as to impair the non-custodial parent’s visitation rights and decision-making participation rights.

On the other hand, if the custodial parent seeks to relocate with the child to London, the situation changes dramatically. The non-custodial parent’s visitation rights are significantly impaired, as travel to see the child on weekends or holidays is hampered by the distance, cost, and time between New York and London. Further, the non-custodial parent’s ability to help with the major decisions that affect the child will also be hampered because there would be no effective way to ensure that his opinions are carried out. Therefore, in cases such as this, the distance significantly impairs the ability of the non-custodial parent to visit the child and participate in making major decisions in the child’s life.

As demonstrated, the potential impairment of the non-custodial parent is increased where the custodial parent desires to relocate to another country as opposed to another address in the same state or another U.S. state. In these cases, it is normally required for the custodial parent to seek permission from the non-custodial parent and seek an order from the court that grants the custodial parent permission to relocate with the child.

This permission or notice to the other parent must include the address and phone number of the new home, information on the new school that the child is to attend, the date of the planned relocation, and the reason why the custodial parent is planning to relocate. If the relocation will affect the terms of the custody agreement, a new custody agreement must be executed—one that emphasizes the revised visitation schedule. As a part of this permission or notice to the non-custodial party, an affidavit is also typically sent. This affidavit allows the non-custodial parent the opportunity to voice their concerns or approval with the proposed relocation and revised visitation schedule. If there is an objection, the affidavit is used to express those opinions, and then the affidavit is filed with the court. It is important that the non-custodial parent voice their concerns and objections as soon as possible so that they do not risk losing their ability to make such objections. This is because objections are deemed waived if not raised in a timely manner with the court.

If the non-custodial parent does not file an objection, the custodial parent will then generally provide the court with evidence that they gave the non-custodial spouse notice of the relocation and that no objection was made. The custodial parent may also be required to file an affidavit that mentions that no objections were made as well as a revised custody agreement that reflects modified visitation rights.

The court will then schedule a hearing that determines whether or not the proposed relocation should occur. The custodial parent at this stage should be prepared to demonstrate that the relocation would not be detrimental to the child. The custodial parent should support this assertion with good reasons as to why the relocation is beneficial. If the judge agrees that the relocation would be in the child’s “best interests” and not be detrimental to the child’s wellbeing, the relocation is approved. If not, the judge will not approve the relocation. In some cases, if the custodial parent leaves the state or country with the child, the non-custodial parent has the right to file a petition with the court that seeks the immediate return of the child and a hearing on the matter.

Because child custody issues are very complicated—especially where one parent desires to relocate to another state or country—it is important that both parents retain and secure an experienced divorce law attorney to guide them through the process and advise them on their rights.

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