How Can I Prevent The Parent With Sole Physical Custody From Relocating With The Children?

Relocation Issues

Could You Give Us A Roadmap For Our Discussion When The Sole Physical Custodian Wants To Relocate?

You bet Tracy. First, I’ll talk about what sole physical custody is in Utah because whether a party has sole physical custody or joint physical custody makes a big difference in how the court does the analysis. We’ll also talk about if custody hasn’t yet been established. Next, we’ll talk about the nuts-and-bolts of the procedure for the non-custodial parent to prevent relocation. Then we’ll talk about legal factors that the court will be looking at in determining whether to prevent or allow the custodial parent to relocate with the child. And finally, we’ll talk about this, if relocation is allowed, what is the new parent time schedule going to look like and how will travel arrangements and expenses be handled?

What Is Sole Physical Custody In Utah And Why Does That Matter When A Parent Wants To Relocate?

The short answer tracer is that if a custodial parent has 255 overnights or more such that the other parent has 110 overnights or less, in Utah, that parent has sole physical custody. That matters because relocation more than 150 miles away from the other parent is much more difficult and much more complicated if the parties share joint physical custody. If that’s the situation you’re in, you may want to look at the other video I’ve done on that topic.

Why Is That Distance Significant And What If I Am Wanting To Relocate So That I’m Only Let’s Say A Hundred Miles Away From The Other Parent?

Utah has a statute often referred to as the long-distance statute. It’s Utah code 30-3-37, and that statute gets invoked if the move is 150 miles away or more. And we’ll be talking about how that statute impacts things as we go along. Unfortunately, there’s very little legal authority out there to give courts guidance on what to do if a parent wants to locate such that the parties are say, only a hundred miles away. There may be some overlap in how the court analyzes the situation, and if that is the circumstance, you’ll definitely want to talk to an experienced family law attorney about how to handle it. But for purposes of today’s discussion, we’re going to be talking mostly about 150 miles or more away.

What If There Is Not A Court Order For Custody Yet?

If neither parent has filed a custody or divorce petition with the court, then there’s nothing preventing them from relocating. That said, once a petition has been filed and litigation has begun, then there is an automatic injunction that restrains the parties from having the children engage in non-routine travel or moving out of state without leave of the court, even if there hasn’t been a custody order on a temporary basis that’s entered yet. If a petition has been filed and there are no other orders, typically the court is going to restrain somebody from moving out of state without leave of the court. If you and your partner are just separating and you’re trying to prevent the other parent from relocating, you’ll want to get your petition filed right away.

So If A Parent Does Not Have Joint Physical Custody Or Doesn’t Have At Least 111 Overnights Per Year, What Do They Have To Do Or File In Order To Prevent The Other Parent From Moving Out Of State Or A Long Distance From The Other Parent?

The statute governing parent relocating with children 30-3-37 contains various rules of how relocation should occur. First, any parent wishing to relocate that far is going to have to provide notice to the other party at least 60 days in advance. That notice needs to contain a statement that the relocating parent will not interfere with the other parent’s parental rights or the court ordered parent time. It should also include a statement that both parties have agreed on a parent time schedule or that they will agree on the parent time schedule or that the parent time schedule set forth in the relocation statute itself will be followed. The reason that this notice must be given is to provide the non-relocating party an opportunity to take the matter to court if they disagree with the relocation. Then the statute sets forth the methods by which a party objecting to the relocation may request a hearing and how soon that hearing must occur once proper notice has been given.

If the non-custodial parent does not dispute the relocation within 60 days of receiving the notice, the parties don’t have to go to court. At that point, it’s sort of assumed that there’s no objection to the relocation and the relocating parent can feel safe to move. If the proper notice has been given, we’re just going to use the statutory relocation schedule and the non-custodial parent does not object, then that will become the new permanent parent time schedule. If the parties reach an agreement as to what the new schedule will be, then they don’t have to go to court and the agreed upon schedule will be the new permanent schedule. But if the non-relocating party disagrees with the relocation, they can and should file a motion requesting a relocation hearing outlining all the reasons why the court should prevent the move. If the custodial parent fails to give them the proper notice within 60 days prior to the move with all the things that that notice should contain, the non-custodial parent’s motion to prevent relocation will be even stronger.

Under the statute, the hearing should be an expedited hearing, meaning that the court must set it on the court’s calendar just as quickly as possible. In the non-custodial parent’s opposition motion, the opposing parent will outline the factors that they think are relevant to the children’s best interest and why relocation should not occur. And if relocation is allowed, what the travel arrangements should be for the children and who should bear the cost of it. At the hearing, the court will make decisions regarding all of those things, and the relocation will often take place in front of a court commissioner if one is available rather than a judge. These will usually be relatively short hearings, similar to a temporary order hearing as opposed to a full trial. But this does not prevent someone from filing a petition to modify the divorce decree and ask for custody or asking for a more thorough or more considered decision from a judge.

How Does The Court Analyze All This? What Kinds Of Things Are They Looking At When Trying To Figure Out Whether A Parent Should Be Allowed To Relocate With The Child?

Well, Tracy, let me first say again that if this were a joint physical custody situation, the analysis becomes more complicated. There are additional legal requirements such as possibly filing a petition to modify and some other requirements, but in a sole physical custody situation where the custodial parent wants to move, the legislature has not given us a list of factors for the court to consider. Each judge might analyze it a little bit differently. The judges do receive training from psychologists and experts on what to consider.

What I’m going to do is tell you the factors the courts have historically have been trained to consider in weighing whether to allow a relocation. After I tell you those factors, I’m going to tell you the ones that a non-custodial parent wanting to prevent relocation should emphasize the most, the ones that are going to be the most persuasive to the court. But the first thing I’m going to do is give you a list of the main factors:

  1. The history of involvement by the non-custodial parent, including after the separation. How regular is their parent time? Do they attend activities, medical visits, those kinds of things.
  2. Geographical distance. Is it more than an hour’s drive away? Does it interfere with spontaneous continued parenting? Is it more likely to fundamentally alter the bond between the parent and the child just due to sheer distance? The financial burden, which is imposed by the geographical distance is if it’s only an hour away, it may not be that serious. If it’s all the way across the country that is going to have a more serious price tag associated with it for every visit.
  3. Cognitive and emotional status of the child. Does the child have an anxiety issue with this? Are there special needs such as autism or other mental health issues that might be exacerbated by the move? What about the child’s degree of coping skills?
  4. The attachment of the child to the parents, not the other way around, not the attachment of the parents to the child, but the attachment of the child to the non-relocating parent. Is there a clear difference in the level of attachment between the two parents? Who does the child rely on when the child is anxious or sick or in need? Does the child articulate some kind of a difference in how much they trust one parent over the other? What has been the level of conflict between the child and each parent? Basically, who’s the psychological parent?
  5. The psychological health of both parents. Does either parent have a mental health illness? Does each parent have a history of competently buffering the child from the effects? Are there high levels of parental stress, poor coping mechanisms? What has the moving parent done to actively promote the child’s relationship with the other parent, both before and after the move? Is the custodial parent hostile and dissatisfied and kind of a restrictive gatekeeper? Can the custodial parent actively help the child retain the non-custodial parent’s memory and keep that fresh in the child’s mind?
  6. The same kinds of psychological factors for the non-moving parent. Have they been active and appropriately parenting before the move? Has the non-custodial parent demonstrated little or no interest in the kids? If so, maybe the move will have little or no impact. Is the non-moving parent neglectful, abusive, violent, mentally ill, dangerous. If so, the children may struggle but be protected from damage that exposure to those kinds of things might present.
  7. The extent and focus of conflict. Are parents able to insulate the child from conflict? Has a parent attempted to convince a child that his or her perspective in relocating is the right one? Has the moving parent, the child about the move before the matter is decided? Oh, look, we get to move close to Disneyland before the court has decided to allow the move. If high conflict is present continually, relocation may eliminate repeated trauma of conflict or violence or aggression, and that actually may be a beneficial thing.
  8. History of a child or a spouse’s maltreatment. If there’s been a lot of domestic violence, for example, between the two parents that perhaps parallel parent as opposed to continual joint decision-making is the best idea and relocation might be consistent with the need for fewer transition times for the child or less communication and more structured parent time.
  9. The motivations for the move. Is the move just to get away from the other parent? Is the moving parent stable in their home or employment prior to the choice to move? Or do they have a history of housing instability and employment instability? Is the moving parent voluntarily giving up gainful employment and stable housing? Is the choice associated with the stress of the initial separation or is this a well-considered thing over time? Is this to follow a new romantic relationship that may or may not work out? Is there a history of repeated moves in order to pursue some new fling? Is the move motivated by a valid or an invalid fear of the other parent? Is the move avoidable or is it unavoidable? Has the non-moving parent been cooperative in providing financial and co-parenting support in the past or have they been a bit of a deadbeat? Is the moving parent trying to thwart the other parent’s relationship or parent time with the kids? Can the moving parent appreciate the potentially negative impact on the children, including the relationship with the other parent? If they can’t appreciate that, that’s going to weigh against them.
  10. The age of the child. Different ages of children impact their ability to handle the move. Older children’s preferences should be considered more heavily than younger children’s preferences. If it’s a brand-new baby infant and then the custodial parent relocates, good close attachment with the non-custodial parent is unlikely. If the child is, say, 6 months to 24 months old and infants and toddlers, they need regular interactions to create and maintain their relationships and the relocation might disrupt that or weaken their attachment. The child might experience also depression or anxiety if they have had a strong attachment to the non-Custodial parent. Children, if they’re under three years particularly, don’t have the cognitive and communication skills to help them cope with that loss. Older children at least three years or older, have increasingly better abilities to cope.
  11. The recency of separation and divorce. If this is a recent marital separation than a relocation on top of that can be an additional kind of traumatizing kind of factor for the children.
  12. The child’s degree of involvement with community and extended family. Are they really integrated into the community? Do they have friends, extracurricular activities, part-time jobs, boyfriend or girlfriend?
  13. There’s been research to show that higher harm to children is associated with relocation if the child is younger, if there has been high non-custodial parental involvement, if there are lower individual resources, coping skills, attachment figures available to the child. If there are poor coping skills by the custodial parent who’s relocating, if they have mental health issues and can’t cope very well or can’t support the relationship of the other parent very well, higher harm is associated with that. Longer geographical distance is associated with higher harm, as is recent marital separation. But less harm is associated with older kids, if there’s been lower parental conflict, if there’s a high level of individual resources, attachment figures and coping skills available to the child. If the custodial parent has demonstrated in the past a willingness to promote the relationship with the other parent, if it’s shorter distance and not all the way across the country, but maybe just a few hours away.

Now, I want to emphasize that depending on the facts of the case, any of these factors might carry significant weight with the court. But for a non-custodial parent wanting to prevent relocation, here are the main factors that I think should be emphasized:

Any evidence that the children are not actually thriving, happy and well-adjusted with the custodial parent. Easy examples would be if there’s domestic violence going on in the home, substance abuse issues, educational neglect like excesses of absences and poor grades, those kinds of things. Severe mental health or behavioral issues. Evidence of how closely you and your children are attached to each other, how much you do with them and for them, and how actively involved of a parent you are. Evidence of how integrated the children are in their current communities. Have they got grandparents, cousins, friends, other family, extracurricular activities, part-time jobs that they’re really into. Finally, but just as importantly, evidence regarding the other parent’s, poor co-parenting, their lack of willingness to support your relationship with the children and contact with you. Failure to involve you in decision-making, sending nasty text messages and emails disparaging you, interfering with your parent time. Failure to inform you of important information regarding the children, those kinds of things.

Let’s Assume That The Court Decides To Allow The Relocation. What Does That End Up Looking Like Then In Terms Of The New Parent Time Schedule And Travel Arrangements And Costs?

If relocation is allowed, the non-custodial parent will have most of the time, every other spring break, every other fall break, every other Thanksgiving or winter break and half of the summer. The non-custodial parent will also be allowed one weekend per month if they wish it at their own expense. If they want the monthly weekend, they’ll have to bear the travel costs. But there is no reason that a non-custodial parent can’t ask for more than that, like the majority of the summer or every spring break and every fall break, those kinds of things. Now, if the children are under five, the court is more likely to deviate from that standard schedule. The court is required to take into account the age of the children, the developmental needs of the kids, the distance, the travel arrangements and costs of travel, the level of attachment, and those kinds of other best interest factors.

A court might say, Hey, look, until the child is say age five, we’re going to give more frequent visits, but of shorter duration to the non-custodial parent. The parties can agree to any sharing of transportation costs they want, but if they don’t reach an agreement, then the statute will begin with the presumption that the relocating party will bear the brunt of the travel. The majority of the travel expenses. Essentially, the court will generally require the relocating parent to pay for all the travel expenses relating to either spring break or fall break, either Thanksgiving or winter break, and one half of the travel expenses for the summer break. But the non-custodial parent will be required generally to bear the travel expenses for the monthly visit if they want to exercise a monthly visit. That said, there is no reason, again, the non-custodial parent can’t ask for the custodial parent to pay even more of the transportation cost.

How Can An Experienced Family Law Attorney Like You Help?

Each case is fact-sensitive, but generally it starts with the drafting of the notice. If a custodial parent wants to move, the notice has to be drafted in a specific way, and you have to make sure that proper service is done on the other side so that they can’t claim that they didn’t receive it. If further litigation is needed, if the other side opposes the relocation, then how to gather, organize and present the evidence and how to present your case in court effectively. Those are all things that an experienced family law attorney can do, and because the stakes are so high, somebody wanting to relocate really should hire an experienced family law attorney to help them with this.

I’m here with experienced family law attorney Kelly Peterson, who assists clients in the complicated area of relocation issues. When one party wants to prevent the other party from relocating with the children a long distance away. If this is an issue for you or someone you love, don’t hesitate to contact Kelly Peterson’s office to see how he can help. He can be reached at the contact information listed on his website.

Relocation Issues

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