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Introduction to Relocation and Child Custody
Let’s address the reasons a judge will deny relocation of the child to the custodial parent. The rules of Child Custody can be found in this article. Today we’re diving into the often tricky world of child custody and what happens when one parent decides to pack up and move to a different state. This might sound like an episode straight out of a daytime TV drama, but it’s a real challenge that many folks face. We’re here to break down some of the legal mumbo-jumbo and bring you the basics.
Moving Out of State
First off, let’s chat about what relocation means in the context of child custody. Imagine you’re the parent who spends most of the time with the kiddo (the custodial parent), and for one reason or another—maybe a new job, better financial prospects, or personal reasons—you decide to move. That move might throw a wrench in the plans for the other parent’s (non-custodial parent) visitation schedule. And it could mean less access to the child for the non-custodial parent. So, to avoid any fuss, most child custody agreements have clauses that talk about relocation.
Dealing with the Legal Stuff
Often, the court or the parents agree that the custodial parent should stay within a certain geographical area—say, the same city, county or even within a few miles, for example. If the custody agreement doesn’t mention anything about moving, it’s up to the custodial parent to ask the court for permission.
If the non-custodial parent finds out that the custodial is moving, they should run, not walk to the Family Court to get an order to stop it. We’ll discuss below some the timetables. But, the sooner you go to court the better. If you go before the move, the court may block the move until a hearing is held. If you go after the move, depending on how soon you go to court, the judge could force the custodial parent to come back pending a hearing.
BIG POINT FOR DADS:
Moms do not have greater rights than you, and CANNOT on their own decide to move. Too many dads seem to think that moms have the right to move, even out of state, and they do not have any rights or a say. This is dead wrong.
Even if they have the green light to move, it’s a good idea to work out a new visitation schedule with the other parent or get a court order just to keep everything on the up and up.
What Does the Court Look at?
The big question for the court is whether moving is in the best interest of the child. To figure this out, the court considers a few different things:
- Why each parent either wants to or doesn’t want to move
- The relationship between the child and each parent
- The impact of the move on the child’s relationship with the non-custodial parent and siblings
- Any benefits the move might bring to the child
- Whether a good relationship can be maintained between the child and the non-custodial parent after the move
Getting It in Writing
Whenever a move is involved, it’s a smart move (pun intended!) for the custodial parent to get a written agreement from the other parent, saying they’re okay with the move. Or better yet, get a court order that gives the thumbs-up to the move.
It is always a good idea to get the agreement in a written form, which is notarized. However, I’ve seen judges accept email communications between the parties, if, the emails clearly show that the noncustodial parent agreed to the move. The agreement must be clear and unequivocal.
What’s This about Jurisdiction?
Now, you might be wondering, what happens when kids move to another state? Who gets to decide what happens next, the old state or the new one? This can get a bit complicated, especially if there’s no court order in place. Let’s take New York as an example.
If the kids move out of New York, it still keeps jurisdiction, or the power to make decisions, for six months after the move. If the non-moving parent doesn’t do anything in that time, the new state takes over. So, the minute the custodial parent moves, a six-month clock starts ticking. It is never a good idea to wait until the last minute, as the judge may look upon that as you agreeing to move. The sooner the noncustodial parent runs to court, the better it looks for them.
Enter: The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA)
But wait, there’s more! The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) is a law that all states in the U.S. follow. This law was created to avoid conflicts between states when deciding which one gets jurisdiction over child custody cases. Under the UCCJEA, the child’s “home state” has priority when deciding custody cases. The “home state” is typically where the child has lived with a parent for at least six consecutive months prior to the legal action. This can help create consistency and prevent conflicting orders from different states.
The purpose of this law is to prevent one parent from running to another state and filing a custody petition. This would force the non-custodial parent to travel to another state to enforce their parental rights.
The UCCJEA gets rid of that type of forum shopping. The noncustodial parent can bring their action in the original state – But remember the 6 month clock. Tick, tick, tick.
But What if There’s Already a Court Order?
If there’s already a court order saying that a state like New York keeps jurisdiction, that usually stands—unless there’s a big exception. If important info about the child’s care, protection, schooling, and relationships isn’t available in New York anymore—like if the custodial parent and the child have lived outside New York for a while and the non-custodial parent hasn’t been in touch—the new state could take over jurisdiction. Or if both parents and the child have moved out of New York, then the child’s new state has a greater interest.
Kidnapping?
We get asked this question a lot: If my spouse relocates without my consent, isn’t that kidnapping? Maybe.
This is a bit complex, but let’s start with a Federal Law:
Think back to 1980 (or, if you’re a millennial just imagine it). Back then, lawmakers put together this groundbreaking act to lay out some clear rules about child custody cases. The key idea? Home is where the heart is. The PKPA says that, in the case of any disputes, the kid’s “home state” should have the final say. That’s typically the place where the child has been living for the last six months. Which is where the UCCJEA picked up the 6 month clock.
Why does this matter? It stops a sneaky parent from starting legal proceedings in a different state just to get a better court outcome – a loophole known as “forum shopping”. Not cool, right?
The PKPA also makes sure one state can’t just change another state’s child custody decision without sticking to the rules of the PKPA. If a state does make changes without following those guidelines, the rest of the states can choose to ignore the new order.
Now, let’s touch on a hot topic – the PKPA and same-sex marriage.
In 1996, a law called the Defense of Marriage Act (DOMA) came into play and stirred the pot a bit. This created some tension when it came to the kids of legally married same-sex couples. Here’s the thing: even if a state doesn’t recognize same-sex marriage, according to the PKPA, it still has to enforce child custody orders from a state that does. But the DOMA allows states to refuse to recognize such marriages. Yeah, it’s a bit complicated. While DOMA is gone, we are seeing a number of states restricting the rights of the LGBTQ+ community.
And finally, what’s all this talk about the Hague Abduction Convention?
Well, this is an international agreement that creates a system to return kids who have been wrongfully taken or kept away from their usual country of residence. Kind of like an international version of the PKPA, if you will.
PKPA and Criminal Law
There are several criminal laws related to child custody and kidnapping:
- The Fugitive Felon Act allows for federal prosecution if a person is accused under state law of felony parental kidnapping and flees the jurisdiction.
- The International Parental Kidnapping Crime Act of 1993 makes it a federal crime to remove a child younger than 16 from the United States, attempt to do so, or retain a child outside the United States to obstruct lawful exercise of parental rights.
- The Extradition Treaties Interpretation Act of 1998 authorizes the U.S. to interpret “kidnapping” to include international parental kidnapping for purposes of any extradition treaty to which the United States is a party.
Here’s some useful links:
- National Center for Missing and Exploited Children (NCMEC) publishes additional resources on:
- International Family Abductions
- Federal Bureau of Investigations (FBI) has information on:
Military Divorces and Custody Issues
Military folks and spouses have special issues. Primarily because the state where the divorce is occurring may not be where the parties will ultimately live. Or maybe one of the parties will be PCSing to another state, or has had an EROD.
We’re a veteran-owned business and Gary Port and George Sava were JAG lawyers. We understand the military and the additional issues military service can create in a custody case.
Bringing It All Together
Wrapping it up, moving and child custody issues can get pretty complex. If you’re in this situation, remember that every case is unique, and it’s always a good idea to talk with a lawyer before making any moves. While a relocation can bring new opportunities, it’s crucial to think about its impact on your child and the other parent’s rights. Take a deep breath, and remember: you’ve got this!
If you have questions, call us at Port and Sava, (516) 352-2999 for a free telephone consultation.
