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Out of State Move by Custodial Parent

In most states, courts permit a custodial parent to move out of state with the child if the parent has a legitimate reason for the move. Thus, noncustodial parents who seek to enjoin the custodial parent from moving or who seek to modify custody on the basis of a proposed move are generally unsuccessful. Courts in many states look carefully at the facts of each case and will deny permission to move if a custodial parent appears to have a bad faith reason for a move or does not have a sufficiently good reason for the move.

The states that generally do not allow out-of-state moves by custodial parents place particularly strong emphasis on the need for maintaining continuity in the relationship between the noncustodial parent and child. Those states attach less weight to the desires of the custodial parent. The degree to which states allow or do not allow out-of-state moves is often reflected in the rules on burden of proof and on the rules regarding what must be proved.

The standards of most states regarding moves by the custodial parent have developed through case law. In recent years, however, legislatures of several states have also addressed the issue, usually with the intent of giving the noncustodial parent a moderate amount of protection against moves by the custodial parent. It is common for statutes to require that the parent who seeks to move with the child give a certain period of notice of the intent to move. Also, the courts consider whether the move is in the best interests of the child.

Burden of Proof

The burden of proof that a court applies in deciding whether or not to allow a custodial parent to move will often determine the outcome. In many cases, the weight of evidence is not clearly in favor of or against a move. In a typical case, the move offers advantages to the custodial parent, such as a better job, proximity to family, or the opportunity to accompany a new spouse who wants to locate elsewhere; however, the advantages of the move are counterbalanced by disruption of the child's existing environment and loss of frequent contact between the noncustodial parent and child.

In many states, the burden of proof is on the parent opposing the move. Unless the objecting parent can show by a preponderance of the evidence that the move is not in the child's best interest, the custodial parent will be allowed to move with the child. In some states, the presumption that moves should be allowed is so strong that the trial court is not required to hold a full evidentiary hearing before allowing the custodial parent to move with the child.

Rationale for Allowing Custodial Parent to Move with Child

Courts have advanced several rationales for allowing the custodial parent to move with the child. Some courts say that we are a ''highly mobile'' society and that it is unrealistic to assume that a custodial parent and child should be required to reside in one location for a long period of time. Other courts have reasoned that because the noncustodial parent is always free to move, the custodial parent should have an equal right to move, even if it might be in the best interest of the child that the noncustodial parent remain near the child. In addition, some courts routinely allow the custodial parent to move with the child in order to promote continuity in the relationship between the child and custodial parent and to discourage relitigation of custody.

Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.