What do I have to do to be able to legally move my children out of state?
Child custody arrangements determine both physical custody of the child, which includes who has primary care of the child, visitation and where the child will live, as well as legal custody of the child, which determines whether one or both parents will be involved in making the important decisions about a child’s health, education and welfare.
Courts generally assume that it is in the best interests of children to have interaction with both parents through a joint or primary custodial arrangement. Sole legal and physical custody, however, may be considered the best custodial option if there has been a history of neglect or if one parent has had very little contact with the child.
Regardless of the custodial arrangement, however, all states generally agree that moving a child a long distance from either parent is likely to increase the difficulties of a meaningful relationship with the child. For this reason, certain legal steps must be taken before a parent decides to move with their child.
Can I move with my child?
Before making any decision about whether or not to move with your child, it’s important to understand your state’s law, the custodial agreement in place, and whether or not the other parent has agreed to the move.
1. Review Your Custodial Agreement
The first step to determine your rights to move with your child is to review the custodial agreement. In many cases, the custodial agreement will contain a geographical restriction.
For example, it is the public policy of the State of Texas under the Texas Family Code that the non-primary parent has “frequent and continuing” contact with their child. With this in mind, almost all child custody orders will contain some type of geographical restriction.
It’s interesting to note, however, that additional restrictions may also be included. For example, some orders will also place a geographical restriction on the non-primary parent, requiring them to live a specified distance from the primary parent. If the non-primary parent moves farther away than the allowable distance, this move may automatically lift the restriction on the primary parent to stay within a specified distance as well.
Note: If your custodial agreement does not have a geographical restriction and the non-custodial parent has given their express consent for the move, assuming it is not barred under state law, you may have the right to relocate. Talk to a lawyer if you have questions.
2. Review Your Ability to Lift the Geographical Restriction
In some cases, even if the custodial agreement has a geographical restriction, you may be allowed to have it lifted. For example, a court may allow the move if you can present evidence that it is in the best interests of the child, you are not moving out of reach of the other parent, and there is a very good reason for the move.
3. Review whether Notification of the Move is Required
Some states do not require custodial agreements to contain a geographical restriction, but instead, require the custodial parent to notify the non-custodial parent of an impending move. State laws may determine the number of days required for the notification.
If you live in a state requiring a notification, you will need to notify the other parent within the specified time. The non-custodial parent will then have the option to file a motion to challenge the move. The court will then schedule a relocation hearing to review the evidence to support the move.
At the hearing, the custodial parent will have to provide compelling evidence that the move is in the best interests of the child and is not simply an attempt to interfere with the relationship of the non-custodial parent. Common reasons for the move could include a new job, relocation to be closer to family members who can provide support, or educational opportunities.
If the judge determines that the move is not emotionally, physically, financially or socially in the best interests of the child, or that it will drastically affect the visitation or relationship of the non-custodial parent with the child, the judge is likely to deny the request to move.
Other Considerations Prior to the Move
One of the main considerations for altering a child custodial arrangement and allowing a move is whether or not the non-custodial parent has been involved in the child’s life. For example, if the father of your child has had an active and consistent relationship with your child, the court is less likely to allow you to take the child out of state.
Consider also that the party seeking the request to move generally has the burden of proof to prove that the move is in the best interests of the child. If you cannot provide sufficient evidence for your case, the court is likely to deny the move.
Finally, custodial parents who are seeking to modify a child custodial order may also have to provide additional information to the court, including updated visitation schedules and how the costs for the move will be allocated.