My ex-wife and I divorced 5 years ago, and we have two children together. We went to mediation and agreed she would have sole physical custody of our children, but that we would share legal custody. Recently, my wife informed me that she’s looking for a job in a different state, and if she finds one, she wants to take the children with her. My kids are established in school, and I don’t think moving is a good idea. I also believe that my children would be better off in my care full-time. If my ex-wife and I can’t agree, what will be the next steps?
Relocation cases aren’t easy and often involve high emotions and conflict. Not only is one parent asking to separate the children from the other parent, but a major move will affect the custody and visitation order that’s already in place.
Review Your Current Custody Terms
Divorce and child custody can be complicated and overwhelming, especially if you’re not familiar with the legal system. It’s important to understand what’s in your custody order before you can decide what steps to take next regarding an out-of-state move.
Most states divide custody into two categories: physical and legal custody. Physical custody refers to where the child will spend time, and which parent is responsible for the child’s daily needs. Legal custody allows a parent to have a say in any significant matters of the child’s life, such as education, religious training, and medical treatment.
In your case, your wife is the custodial parent, and you share legal custody of your children. Because you have joint legal custody, most states restrict your ex’s ability to move with the children if you object, but that doesn’t mean the court will automatically deny her request. Once she gives you formal notice of her intention to relocate the children, you can ask the court for help.
Without Agreement, You'll Need to go to Court
It's a good idea to at least try and communicate with your ex to see if she might change her mind about the move or to see if you may be able to work out a modified custody plan. However, it sounds like you're certain you want the children to stay, both for their education and because you think you should now have primary custody.
Because you're both asking for major changes to the current custody plan, it's unlikely that you'll reach an agreement. Assuming you and your wife remain at odds, you'll have to ask a judge to decide.
Like any matter that involves children, the court’s primary concern in move away cases is what’s best for the children. Depending on where you live, the court may presume your wife’s move is in your children’s best interest. If that’s the case, you’ll need to provide the court with evidence of why a move will be detrimental to your relationship with the children.
On the other hand, if your state doesn’t have a presumption, it’ll be up to your wife to prove to the court that relocating the children is in their best interest. While each state has its standards of proof, most courts evaluate the following factors before deciding:
- whether the move will negatively impact the child’s education, social life, and family
- if the child has special needs
- whether the relocating parent or objecting parent are motivated by good-faith
- if there’s a history of either parent disobeying court orders
- the financial impact for each parent, including travel costs
- the child’s opinion
- whether the custodial parent has a history of interfering with or denying visitation to the noncustodial parent
- how the move will impact the child’s quality of life, and
- whether there’s an alternative to relocation.
You indicated that one of the reasons you're concerned with the move is that your children’s education will suffer. While it’s up to your ex-wife to prove that the proposed relocation will benefit your children, you should also be prepared to tell your side of the story.
If your children had difficulty establishing themselves in school and have recently acclimated and done well, or if they're receiving any special services or involved in gifted programs through their current school, you should inform the judge.
And if the new proposed school district (in the town or city your wife plans to move to) does not have the same caliber of services, you'll need to raise that issue as well. Be sure to collect copies of all relevant school records, including attendance, report cards, and progress reports.
Relocation Often Changes Custody and Parenting Time
The court wants stability for children, but it also understands that because we live in a mobile society, sometimes modification of custody or parenting time agreements is necessary.
Regardless of a parent’s reason for relocation, if the court allows the move, it will almost always change the current custody or visitation agreement. As a result, in addition to the factors for relocation, the court must also consider how the move will affect a non-custodial parent’s relationship with the child.
Most states require a filing parent to prove that, since the last custody order, the family situation has changed and as a result, the current arrangement is no longer appropriate. In relocation cases, a move is almost always enough to convince the court to revisit the agreement.
In your case, if the court allows your ex-wife to relocate with the children, the judge must create a new visitation order that will allow you and your children to continue building and growing your relationship, despite the distance between your homes.
In most situations, the court will make up for the missed weekly parenting time by establishing a more extended period of visitation, like requiring the children to spend an entire summer and all holiday and school breaks with the noncustodial parent.
If you’re concerned that you will not have quality time with your children after your ex-wife moves, you should address those issues with an experienced family law attorney before you go to court. An attorney can advocate for your parenting time and can also help the court understand how to offset the costs for travel and transportation for your parenting time.
Changing Custody Is Difficult
It sounds like you would like to become the custodial parent, which involves a modification of custody and not just visitation. Depending on where you live, unless you and your ex-wife agree to change the custody arrangement, you may face an uphill battle to become the custodial parent. Most states require you to prove, with significant evidence, that changing the child’s custodial parent is in the child’s best interest. Each state has a specific set of factors for the judge to evaluate and the standard of proof is high.
If you believe that your children will suffer educationally, socially, physically, or mentally from relocating, you can contact an attorney to help establish your case for a change of custody.