By FPA member Lili A. Vasileff, CFP®, CDFA™
Last Updated: September 5, 2011
In an increasingly mobile society, the idea of relocation after divorce has given rise to substantial case law and academic studies about the effects on children. Relocation may be a necessity or a fervent desire to take advantage of job opportunities, financial needs, or family support networks. It is estimated that 17 to 25 percent of custodial parents move out of the area within the first two years after divorce.1
Without a doubt, relocation cases — in which a divorced parent seeks to move away with the child — are among the knottiest problems facing family courts. The responsibility falls too often on the courts to somehow reconcile the competing demands of the aggrieved parents and children who want both parents close to them.
There does not appear to be any credible evidence on the effects on children moving away with one parent after divorce. Each state interprets this threat of change arbitrarily because there are no clear cut answers.
Most states have laws that spell out exactly how a court decides whether the custodial parent can legally move out of the area with the children after a divorce. In some states, the custodial parent must give the noncustodial parent official written notice of the intention to move. It’s then up to the noncustodial parent to file an objection with the court, which kicks off a court battle. In other states, the custodial parent must file a petition with the court asking for the court’s permission to relocate.
Since the laws vary broadly, it is extremely important for a parent seeking to relocate with children to know, understand and follow the detailed rules in their particular state. Failure to follow the rules can often result in a change in custody. International relocation is a much higher stakes undertaking and one which is not addressed here.
It is a point of fact that, “the current state of relocation jurisprudence reflects three distinct and contradictory trends. The first trend was the traditional view that relocation was a ‘bad thing’ that could be discouraged. Many states enacted statutes that supported a rebuttable presumption that a change in a child’s principal residence is not in the best interest of the child… The custodial parent who wishes to relocate is required to establish that the move will substantially improve the custodial parent’s and the child’s quality of life… The burden of proof is heavy, and severely limits the chances of securing judicial permission to relocate.”2
The second trend, which thrived years ago, was to allow for relocation based on reasonable assumptions unless it was shown that it would specifically hurt a child. A variation on this theme in many states is a two-step approach, whereby the custodial parent must reach a certain threshold by demonstrating good faith motive for the move and that the move will not harm the child, and then the burden swings to the other parent to show harm to the child that would result from the move.
The third trend, which is the current favorite, has been to abandon most of the presumptions and to require each case to be analyzed individually and at great lengths to determine what is in the best interests of the child before an individual decision can be reached. The welfare of the child is always paramount. Courts may look into many factors in deciding whether the custodial parent can move with the children.
Such factors that the courts look into include:3
The relative strength, nature, quality, extent of involvement and stability of the child’s relationship with each parent and other significant people in the child’s life;
Any prior agreements between parents;
Whether disrupting the contact between child and custodial parent would harm the child more than disrupting the contact between child and noncustodial parent;
The intent and good faith of each parent seeking and opposing the move;
Whether there is an established pattern of conduct of the parent seeking relocation to promote or harm the relationship of the child with noncustodial parent;
The age, developmental stage and needs of child;
How moving or not moving will impact the child’s physical, educational and emotional development; the quality of life, resources and opportunities available to the child and relocating parent;
The feasibility of alternative arrangements to foster and continue the child’s relationship with and access to the noncustodial parent;
The feasibility and desirability of the other parent to relocate at same time;
The financial impact and logistics of the relocation or its prevention; the child’s preference, taking into consideration the age and maturity of the child.
In many states, those opposed to “move” launch furious political and legal campaigns to influence public opinion. The overriding presumption is to protect parental rights with their children.
The burden is to analyze relocation economically and offer expert witness testimony in court. Factual background and issues to address by an expert witness may include:
Overall comparison between two cities
Specific sector comparison
Quality of living comparison
Selective comparison of services to be acquired by client
Other city cost of living comparisons
Other employment prospects for client in home town
Personal or professional related issues to relocation
All other custody or divorce related issues for the parties
Motives for relocation are always scrutinized. The court may appoint a guardian ad litem for the children to thoroughly investigate and make recommendations to the court. A deposition, mediation, or formal trial may clarify the issues and help reach an agreement.
A divorce financial planner may be qualified to opine on the economics for relocation as well as on the financial benefits accruing to the custodial parent and child. Without a recognized standard for measuring cost of living comparisons, there is great reliance on subjective factors as well as on expert analysis.
A divorce financial planner can be engaged to analyze, summarize and testify as an objective witness on factors supporting factual background and key issues in dispute. Relocation cases need not be confusing and insurmountable. The questions to be asked are: “What is the state of mind in which the pros and cons of a decision can be thought out and best negotiations can be worked out?” The goal of relocation at its purest should be to provide better for the child. The greatest gift parents can give their children is to strive for a model of post divorce harmony and creative co-parenting.
1 Pros and Cons of relocation After Divorce, Mind Publications by Vijai Sharma, Ph.D., 2004 2 International Relocation of Children: American and English Approaches BY Jeremy D. Morley and James H. Maguire, International Family Law, June 2006 3 Relocating with Children After Divorce, Lawyers.com (partial extract)
FPA member Lili A. Vasileff, CFP®, CDFA™ is the President of the Association of Divorce Financial Planners, the largest national not for profit organization of divorce financial planners and allied divorce professionals, and President of her own private practice called Divorce and Money Matters, LLC.