How Can I Relocate With The Children, If I Have Joint Physical Custody?

 
Relocation Issues

Why Don’t We Start With Giving Us A Roadmap Of What We’re Going To Be Discussing For When A Joint Physical Custodian Wants To Relocate With The Children A Good Distance Away From The Other Joint Custodial Parent?

You bet, Tracy.  First, I’ll talk about what joint physical custody is in Utah because whether a party has sole physical custody or joint physical custody really impacts things. And we’ll also talk about if custody hasn’t yet even been established one way or the other.  Next, we’ll discuss the nuts-and-bolts procedure a joint custodial parent must go through in order for Relocation to be allowed. Then what we’ll do today is we’ll look at the legal factors that the court will likely be looking at and determining whether to prevent or allow relocation. Finally, we’ll talk about this. If a relocation is allowed, what is the new parent time schedule going to look like and how will travel arrangements and travel expenses be handled.

Why Don’t We Start With Talking About What Is Sole Physical Custody In Utah And Why Does It Matter When A Parent Wants To Relocate?

So, the short answer is in order to have joint physical custody in Utah, they have to have at least 111 overnights per year. If one parent has less than 111 overnights per year, then the other parent will be considered to have sole physical custody. This matters because relocation more than 150 miles away from the other parent is much less difficult, much less complicated if one party has sole physical custody. If that is the situation that you’re in, you may want to look at the other videos that I’ve done on this topic.

You Mentioned The 150 Miles. Why Is That Distance Significant And What If I’m Wanting To Relocate So That I’m Only 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 gets invoked if the proposed 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 authority out there to give guidance on what to do if a parent wants to relocate such that the parties are say only 90 or a hundred miles away. There may be some overlap on how the court analyzes that situation, but the statute really doesn’t apply, and if that is your circumstance, you’ll definitely want to talk to an experienced family law attorney about how to handle it.

What If There’s 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 one party from relocating with the children. That said, once litigation has begun, the courts will still have jurisdiction to make whatever custody decision it thinks is in the children’s best interest. If a petition has been filed, then an automatic injunction or restraining order enters preventing the children from non-routine travel or preventing a parent from moving much farther away without leave of the court even if no custody orders have yet entered. If you and your partner are just separating and you’re trying to relocate, there will be some circumstances where relocating before a petition is filed will be advantageous. But that can be a risky move depending on the circumstances and should be made cautiously only after seeking legal advice.

If A Parent Does Have Joint Physical Custody Or Has At Least 111 Overnights Per Year, What Do They Have To Do Or File Or Argue In Order For The Court To Allow A Move Out Of State Or Long Distance From The Other Parent?

Two laws impact the answer to that question; Utah code 30-3-37 and also Utah Rule of Civil Procedure 106, I’m going to talk about 30-3-37 first. That statute governing apparent relocating more than 150 miles away contains various rules of how relocation should occur. First and foremost, any parent wishing to relocate with the children if it’s going to be more than 150 miles away must 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 parent time or parental rights. The notice should also include a statement that either both parties have agreed to the parent time schedule or they will agree on a parent time schedule or that the parent time schedule set forth in the relocation statute itself is going to be followed.

The reason that this notice must be given is to provide the non-relocating parent an opportunity to take the matter to court if they disagree with the relocation. The statute then sets forth the methods by which a party objecting to the relocation may request a hearing and how soon that hearing must occur. One way to attack a party’s bid to relocate with the children is to attack the notice, to point out to the court how the other parent’s notice was either not given or it was deficient in some important way. In fact, 30-3-37 says that a parent who fails to comply with this notice requirement will be in contempt of court. That’s how seriously the court takes the notice requirement. You have to make sure you get this notice requirement done right and delivered.

Let’s assume that the proper notice has been given. If the other 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, then the schedule set forth in 30-3-37 will become the new parent time schedule. But let’s assume that the non-relocating party disagrees with the relocation. Then they can and they should file a motion requesting a relocation hearing outlining all the reasons why the court should prevent the move. But under the statute, the hearing needs to be an expedited hearing, meaning that the court must set it on the court’s calendar very quickly. In the relocating parent’s motion, they will outline the factors they think are relevant to the children’s best interests, why relocation should occur, and if relocation is allowed, what the travel arrangements for the children should be and who should bear the cost of it.

One thing the non-relocating parent should point out to the court is this, there’s a case bursa versus bursa that indicates it is the relocating parent’s burden to prove that it is in the children’s best interest for the move to occur. It’s not the non-relocating parents to burden to prove that it’s not in the children’s best interest to relocate. That’s important in case it’s a close call. If it’s a close call and the court is having a hard time deciding, the court can say, well, I’m at 50-50. I really don’t know which way to go, but because I’m at 50-50 the relocating parent loses because I’m at ‘I don’t know’, and it’s the relocating parent’s burden to get me onto their side on this issue. There’s another case that’s important for the party opposing the relocation to point out pin Pingree versus Pingree, and that stands for the idea that if the relocating parent does not meet their burden of proof and fails to show that it’s in the child’s best interest to move, if that relocating parent then moves anyway, and if the relocation would require a change from joint physical custody to sole physical custody, then automatically it would be in the child’s best interest for the non-relocating parent to have custody.

30-3-37 says the same thing, but in a different way, but those two cases together become very powerful for the non-relocating parent. Everybody in the United States has a constitutional right to travel. The court can’t tell a relocating parent that they don’t have the right to move, but what the court can tell a relocating parent is they can’t move with the children. If the relocating parent loses, usually the court will say to the relocating parent, okay, you can move, but if you choose to move, custody is going to change to the other parent. The relocation hearing will often take place in front of a court commissioner if one is available rather than a judge. These will usually, if done in front of a commissioner especially, be relatively short hearings, similar to a temporary order hearing as opposed to a full-blown trial. If a commissioner hears it, either party can object up to the judge for a new hearing if they do so within 14 days.

You Mentioned That In Joint Custody Situations Another Law Comes Into Play. What Was That One?

Yes, that’s Utah Rule of Civil Procedure 106, which was recently interpreted by an important case called Ross versus Ross, and this rule says that except as provided in the relocation statute, any proceeding to change custody even from joint physical to sole physical has to be started by filing a petition to modify by essentially starting the custody case all over again. When you file a petition to modify, what you’re alleging is that there has been a significant and material change of circumstances that has occurred since the decree of divorce or decree of custody entered and that it’s in the children’s best interest to move. Rule 106 and Ross versus Ross stands for that idea that if you’re going to try to change some joint physical to sole physical so that somebody can relocate, they have to file a petition to modify. If the relocating parent has failed to file a petition to modify and relocation would cause the other parent’s time to dip below 111 overnights, then the court is not even allowed to let the parent relocate with the children because they didn’t file a petition to modify. So that’s an additional requirement.

Let’s assume that the relocating parent did file a petition to modify. Petition to modify in this situation is like starting the custody case all over again. It might take a year and a half to get to trial if not longer, and until the court changes the custody and parent time schedule, the old schedule is going to remain in place. Now the court can make a temporary change to the parent time schedule allowing relocation while the parties are waiting on the petition to modify. That can happen, but under rule 106, the court is only allowed to do that if A, the parties have reached some kind of prior agreement to allow for the relocation even on a temporary basis or B, if the relocating parent proves not only that it’s in the children’s best interest to relocate, but that immediate and irreparable harm will result to the children if they are not allowed to relocate.

That is a very difficult burden to meet, but it can be done sometimes depending on the case. A party wanting to relocate is often better served by doing a couple of things. One thing they can do before litigation begins is to negotiate with the other parent to try to allow for the move. Sometimes temporary relocation is agreed upon and then later circumstances change so that the parent who’s temporarily relocated has to make it permanent. And if that occurs, then the immediate irreparable harm burden that they would normally have to prove is much, much easier. Another thing they can do is offer a really generous parent time schedule, which allows joint custody to remain intact, allowing at least 111 overnights to the other parent, extra holidays, more summertime, that kind of thing, every spring break or every fall break. If that happens, then the court might say that since custody is not changing from joint physical to sole physical, rule 106 and the Ross v Ross requirements to file a petition to modify may not kick in, the court may be able to decide the issue at a single relocation hearing rather than starting the entire custody case all over again from scratch.

What Kind Of Things Does The Court Look At When Trying To Figure Out Whether A Parent Should Be Allowed To Relocate With Their Child Or Not?

The Utah legislature has not set forth a list of factors for the court to consider so each judge may analyze it a little bit differently, but the judges do receive training from psychologists and experts on what to consider. What I’m going to do now is to tell you the factors of the courts historically have been trained to consider in weighing whether to allow relocation. Now, after I tell you these factors, I’m going to tell you which ones the non-relocating parent wanting to prevent relocation should emphasize the most, the ones that will be most persuasive to the court on their behalf. But the first thing I’m going to do is give you just kind of the list of factors that the court can consider.

1. A history of involvement by the non-custodial parent, including after separation. Did they have regular quality parent time? Did they attend activities, medical visits, that kind of thing.
2. Geographical distance. More than an hour drive, say 75 miles away interferes with continuous and spontaneous parenting. 150 miles certainly would. Long distance is more likely to fundamentally alter the bond between the parent and the child. The financial burden that the families may not be equipped to carry to maintain a relationship.
3. Cognitive and emotional status of the child. Has the child shown distress, anxiety, that kind of thing. Do they have special needs? Are they autistic and have a very difficult time adjusting to change? Is there a psychological condition that would exacerbate it like that or say ADHD depending on the severity of it or anxiety and those kinds of things that might be impacted by a loss of structure. What about the child’s coping skills? How good are they?
4. Attachment of the child to the parents, not the other way around, not the attachment of the parents to the child, attachments of the child to the parents. Is there a clear difference in the level of attachment that the child has to each parent? Who does the child rely on when they’re anxious or sick or in need? Does the child articulate a difference in trust level? What is the level of conflict between the child and the parent? Basically, who has been the psychological parent more than the other in the past?
5. The psychological health of both parents. Does either parent have a mental illness, poor coping skills? Does a mental or emotional condition prevent a parent from competently parenting? What has the moving parent done to actively promote the child’s relationship with the other parent before and after the move? Are they cognitively unable to understand the importance of doing that? Is the custodial parent hostile or dissatisfied, gatekeeping or restricting of visits? Can a custodial parent actively help a child retain the memory of the absent parent and support that relationship actively? All of that sometimes relates to the mental health of both parents.
6. Psychological adjustment and parenting skills of the non-moving parents. Active and appropriate parenting by both parents will enhance the ability of the non-custodial parent to maintain a relationship. But if one parent is lacking that, that may impact things. 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 a non-moving parent neglectful, abusive, violent, mentally ill, dangerous, inadequate, substance abuse problems? If so, children, especially young children may struggle to be protected from damage that exposure to a chronically harmful parent might provide.
7. Extent and focus of conflict. Are the parents able to insulate the child from conflict? Has the parent attempted to convince a child of his or her perspective in the relocation? Has the moving parent excited the child about the move before the matter was decided? If there’s high conflict present, relocation may actually eliminate repeated trauma of violence or aggression or conflict and may actually be beneficial.
8. A history of child or spouse maltreatment. That’s a powerful predictor of mental health and coping ability. If there’s been this history of spousal and/or child abuse, then maybe parallel parenting rather than co-parenting might be advisable. Relocation may actually be consistent with the need for fewer transition times for the exchange of a child in that situation or less communication or more structured parent time.
9. What’s the motives for the choice to move? Does the moving parent have stable housing and employment prior to the move? Are they just voluntarily quitting their job and quitting gainful employment and giving up housing on a whim? Are they doing it as a result of stress from the initial separation? Are they moving due to a wish for emotional support or a new romantic relationship? Are they following a boyfriend or girlfriend across the country that they’ve just met? Is it motivated by a valid or an invalid fear of the other parent? Does the non-moving parent cooperate in providing financial and co-parenting support? How avoidable or unavoidable is the move? Is it motivated by custodial parents wish to thwart the other parent’s parent time? Does the moving parent really appreciate how the children could be negatively impacted by the move?
10. The age of the child. Different ages respond to relocation differently. Older kids’ preferences should be considered more seriously. If you’re dealing with a zero- to seven-month-old baby, then if the custodial parent relocates, then attached relationships with the other parent are more unlikely. They’re less likely to attach firmly to the other parent. If it’s a child that’s between say eight months and two years, infants and toddlers need regular interactions to create and maintain their relationships and relocation might sabotage that or weaken or eliminate that kind of attachment. Overall, the older the child, the better they are likely to be able to cope.
11. How recent is the separation or the divorce? If the children have not been able to settle in from a recent trauma, their parents have just divorced or just separated and they’ve just barely been traumatized by that, are we going to traumatize them again six months later? If it’s six years later, then it may not have as much of an impact.
12. The child’s degree of involvement with the community and extended family. They have extracurricular activities, jobs, interests that they would be yanked away from.
13. There’s a higher harm associated with younger kids, high non-custodial involvement, lower individual resources like coping skills or attachment figures available to the child. Poor coping skills by the custodial parent, longer geographical distance and recent marital separation.
14. There is less harm associated with older kids, lower parental conflict, higher resources like coping skills and attachment figures, good coping skills by the custodial parent and a willingness to promote their relationship with the other parent in shorter distance.

Those are the kinds of factors that the judge or the commissioner will consider. Any of these factors might carry significant weight with the court, but for a non-relocating parent wanting to prevent the other parent from relocating with the children, here are the main ones to emphasize:

Any evidence that the children are not actually thriving, well-adjusted or happy with the custodial parent. Easy examples would be if there’s domestic violence going on in the home or substance abuse issues, educational neglect, excessive absences, poor grades, that kind of thing. Evidence of how closely your children are attached to you, how much they do with you and for them, and how actively involved of a parent you are. Evidence of how integrated the children are in their current community. They’ve got grandparents, friends, family, extracurricular activities they’re really into, part-time jobs, those kinds of things. The age of the child, the distance. But finally, the poor co-parenting or lack of willingness of the co-parent to support the children’s relationship and contact with you. Failure to involve you in decision-making nasty text messages and emails disparaging you or interference with your parent time. Failure to inform you of important information regarding the children, that kind of thing.

What Does That End Up Looking Like In Terms Of The New Parent Time Schedule And Travel Arrangements And Costs And Those Sort Of Things?

Unless the court orders a different schedule than the statute which the court can do, the non-relocating parent will have every other spring break, every other Thanksgiving holiday, every other winter break, every other fall break and half the summer. The non relocating parent will also be allowed one weekend per month at their own expense if they want it, but there’s no reason a non-relocating parent can’t ask for more than that. They can say, well, give me the majority of the summer, say all of the summer except the first week and the last week. They can say, give me every spring break and every fall break. If that parent enjoyed joint physical custody before the relocation, the court’s more likely to give an expanded schedule, more time than they would normally be allowed under 30-3-37.

The parties can agree to any sharing of transportation costs that they want. If they can reach an agreement that’s preferable, but if they cannot reach an agreement, then the statute kicks in and it says that the presumption is that the relocating parent will bear the majority of the travel costs. Essentially, the court will require the relocating parent to pay for all the travel expenses relating to spring break, Thanksgiving, winter break or fall break and half the summer expenses. There’s generally going to be three big visits during a year, meaning six legs to a journey to and from for each of those three. And the court will say, relocating parent, you’re going to bear five of those six legs of the journey for those relocation experiences. That’s what’s most typical. However, the noncustodial parent will be required to bear travel expenses for the monthly visit if they want to exercise one weekend per month. That said, there’s no reason again that the non-custodial parent can’t ask for the custodial parent to pay for more of the transportation costs. If the non-relocating parent had joint physical custody before the relocation, often the court will require even more transportation costs.

How Can An Experienced Family Law Attorney Like Yourself Help?

The first thing is helping to draft the proper notice and if necessary, petition to modify if the attorney is helping the relocating parent. If they’re helping the non-relocating parent, it’s how to draft the opposition and put that together and get that filed with the court and then of course representing them at the hearing. But it’s in addition to all of that for both sides, how to gather and organize and present the evidence and how to argue it effectively in court.

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 relocate 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 this site.

Relocation Issues