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The best time to defeat a relocation case is before it’s filed

In my 20+ years of family law practice, I’ve yet to see a relocation case in which the requested relocation was solely for the child’s benefit and at the inconvenience of the custodial parent. I’m not sure how a family court judge would react to a non-custodial parent who opposed a relocation that was based on a child’s health needs or vocational interests (assuming the judge believed this was the true reason the relocation was requested) but I assume it would not be favorable.

The relocation requests I see being made are primarily to convenience the custodial parent. Typically these parents (re)marry and they want to move where their new spouse lives or is moving, or want to move for work or to be closer to their family or other support network. The benefits of such relocations for the child are ancillary–the child’s life is improved because the custodial parent has access to more resources or a more stable home life.

In weighing the pros and cons of such relocations, the family court has to balance these benefits against the detriments to the minor child’s relationship with the non-custodial parent. If the child doesn’t have much of a relationship with the non-custodial parent there really isn’t much to balance: the court can simply give the non-custodial parent more time in summer to compensate for less time in the school year.

However if the non-custodial parent is actively involved and a consistent and positive presence in the child’s life, it becomes much harder for the court to fashion a remedy that allows the relocation while maintaining the child’s relationship with the non-custodial parent. It is simply impossible to fashion such remedies if the non-custodial parent is actively involved in the child’s school or extracurricular activities, or has regularly exercised mid-week visitation and therefore rarely goes more than a few days without seeing the child. In such cases, for the family court to authorize the relocation, it must accept that the child’s relationship with the non-custodial parent will be significantly diminished. A custodial parent proposing such a relocation will have an extremely high burden convincing a court that the relocation benefits the child.

When representing non-custodial parents in custody cases, they will often ask me near the end of their case what they can do to prevent the other parent from attempting to relocate with the child. I tell these parents, “be an active, constant, and positive presence in your child’s life.” When they’ve heeded this advice, it’s typically been easy to shut down relocation attempts. When they haven’t, I’ve typically been negotiating the terms of surrender when a relocation is requested.

Non-custodial parents who want to minimize the chances that the custodial parent will relocate should be proactive.  Maintaining a strong, positive and consistent relationship with their child is the simplest and surest way to stop relocations. Demonstrating concern only after the relocation is requested is typically an ineffective strategy.

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  • G.

    You’ve brought up a point that I’ve considered for some time. In today’s transient society, I think it would be difficult for a judge to balance the right of the non-custodial parent, the right of the child, and the right of the custodial parent to relocate. Perhaps it is not so difficult it the custodial parent moves to a neighboring state. However, what happens if the custodial parent wants to move 1000 miles away for a legitimate reason? The judge surely may not say no. I’ve read cases such as this when the judge awards telephone calls, video calls, and generous summer and holiday visits with the burden upon the custodial parent to provide all transportation costs for the child. Yet, if the custodial parent refuses to comply, then what is the remedy? They are far away and can thumb their nose at the court. What is the non-custodial parent to do? I can’t imagine an easy answer.

    • You can enforce the order in South Carolina and use the UCCJEA to enforce the contempt order in the custodial parent’s state of residence. I’ve had South Carolina change custody based upon a custodial parent’s refusal to allow visitation and had the “pick up” order registered and enforced in the custodial parent’s state of residence. They are always shocked that I can do that.

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