What Factors Does The Court Consider In Allowing Relocation?

Relocation of children is one of the most difficult decisions that a judge or a commissioner in a family law case makes. Because each family is very different, and relocation is such a fact-sensitive determination, the court can’t just make a bright line rule that governs all cases. The children’s relationship with their parents are different, the children’s ages are different, the children’s needs are different, and each parties’ finances are different, for each case. Because of this, there is not much case law in the state of Utah governing the factors that the court should consider in a relocation case.

The two main cases in Utah discussing relocation factors contradict one another. In the case of Larsen v. Larsen, a Utah Court of Appeal’s case from 1994, the Court of Appeal has reversed the trial court’s ruling modifying custody.

It found the evidence to be insufficient to support the trial court’s conclusion that it was in the children’s best interest to upset the existing custody arrangement, because the mother had been the primary custodian and the caregiver, and she wanted to move out of the state. In that case, the court decided that removal from the custodial placement would be more harmful than removal from the children’s community of schools. Ultimately, the mother was allowed to relocate with the child.

Then there is a 1999 case called Hudaima v. Carpenter, also from the Court of Appeals, which indicated that the custodial parent wished to relocate. Because the child had a stronger bond with the non-custodial parent and had very close ties to their family and the community, the custody was changed to the non-custodial parent, because the custodial parent wished to move.

The two main cases analyzing various factors contradict one another because the facts were so different.

What kinds of factors does the court consider? In 2010, the Utah state judges and commissioners received training, and a handout was given to them, entitled “Risk and Modulating Factors to Consider in Relocation Cases.” The factors that the judges and commissioners were trained on then include the following:

  • The history of involvement by the non-custodial parent, and whether the non-custodial parent regularly been involved, attended activities, medical visits for their child.
  • The second factor to be considered is the geographical distance—exactly how far away is the relocating parent intending to go, how will it alter the bond between the child and the non-relocating parent, and how much of a financial burden will it create.
  • The third factor would be the cognitive and emotional status of the child—what degree of anxiety or distress will it cause the child to relocate, or are there special needs or particular psychological conditions that would be exacerbated by the move. For example, if a child is serving with ADHD and does not do well with a change in structure, that might weigh against a move. But also, how well the child copes with change will be taken into consideration.
  • Factor four is the attachment of the child to the parents. Who does the child rely on when the child is anxious, or is sick, or in need? Does the child articulate a difference in the child’s level of trust for each parent? The question essentially becomes who is the psychological parent, the one that the child goes to, or does the child trust each parent equally.
  • Factor five is the psychological health of each parents, including does either one of them have a mental illness. If the parties are living close together, does the non-custodial parent create a buffer with the adverse effects of a custodial parent’s pathology or for parenting? 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 or the moving parent hostile towards the other parent? Can the custodial parent actively help a child to retain a memory on the absent parent and help promote that relationship.
  • Factor six, the psychological adjustment and the parenting skills of the non-moving parent. For example, does the non-custodial parent have the ability and the skills to effectively maintain a relationship with the child long distance? How much interest has the non-custodial parent demonstrated in the child? Has the non-moving parent been the neglectful, abusive, violent, mentally ill, or dangerous to the child?
  • Factor seven is the extent and focus of conflict. Are the parents capable of insulating the child from the conflict, has one parent attempted to convince the child of his or her perspective on relocating, or has the moving parent created expectations in the child or excited them about the job’s expectations about the move prior to the matter being decided? To what extent will the relocation eliminate conflict, or exacerbate it?
  • Factor eight is the history of the spouse’s mal-treatment. Factor nine is the relocating parent’s motivations for moving. Are they moving to obtain stable home and employment, or did they just voluntarily quit gainful employment or give up stable housing to move? Are they pursing a new romantic relationship, or just moving so that they can be closer to family members for their own emotional support? Are they motivated by a valid fear or an invalid fear of the other parent? Was the move unavoidable, and has the non-moving parent been cooperative in providing whatever financial support they have been ordered to provide? Is the move motivated by the custodial parent’s wish to thwart the other parent’s relationship with the children? Ultimately, can the moving parent appreciate the potentially negative impact of the move on the children’s relationship with the other parent.
  • Factor 10 is the age of the children. Again, the younger the children are, the more frequent contact they need with the non-custodial parent in order to maintain an attachment to them. Older children have a better ability to cope with long distance relationships with parents. Factor 11 is the length of time that has passed since the separation and divorce. If the separation and divorce—or the separation, if the parties were never married—was recent and potentially traumatic to the child, would this add a trauma to the child, just after the child’s experienced one trauma already? Factor 12 is child’s degree of involvement with the community and extended family where they currently live before relocating.
  • The factors 13 and 14 have to do with higher harm and lower harm. Factor 13 is higher harm, which is associated with younger age of children, high involvement by the non-custodial parent prior to relocation, lower or poor coping skills with the child, poor skills of the custodial parent, longer geographical distances, and recent separation of the parties.
  • Factor 14 indicates less harm is associated with shorter geographical distances, the ages of children, no parental conflict, high individual resources and coping skills available to the child, and good coping skills by the custodial parent. One example of coping skills by the custodial parent is their willingness to promote the relationship between the child and the other parent.

Can I Appeal A Relocation Decision Made By The Court?

If the relocation decision was made by a court commissioner, rather than a judge, any party dissatisfied with that decision may file an objection and have a hearing before the judge, to essentially appeal the commissioner’s decision. If the dissatisfied party files their objection within 14 days of the commissioner’s decision,

Also, even if the judge made the relocation decision, either parent may file a petition to modify the previous custody orders. They may go through discovery, essentially restart the custody case, and may eventually have a trial on the issue rather than just a short relocation hearing. It would be the same judge hearing the issue, but hearing it much more “in-depth” after each party has had an opportunity to engage in discovery, to build their case, and to be more prepared for the trial.

The trial would be pursued by putting on evidence, including witnesses on the stand to be examined and cross-examined, rather than just oral argument before the judge, which may be how the judge decided the issue at a relocation hearing. Essentially, by filing a petition to modify after a judge has made a quick and dirty relocation hearing ruling, the parent wishing to dispute that ruling may have a more in-depth trial later.

How Can An Attorney Assist Me In A Relocation Request?

The Law Office of Kelly Peterson regularly helps people with relocation issues. We can help by drafting notices of relocation, advising parents on whether relocation is likely to be acceptable to the court, requesting relocation hearings, filing objections to relocation and to relocation requests, appearing at hearings and making arguments for parents at relocation hearings, filing objections to the commissioner for dissatisfied parties at relocation hearings, and when necessary, petitioning to modify a previous divorce or custody decree following a relocation hearing. We can engage in discovery to help build parties case on a relocation issue. If you are considering relocation, are relocating, or are opposing a possible relocation, call us today.

For more information on Factors Considered In Relocation Proceedings, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (801) 616-3301 today.

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*Child Welfare Law Specialist Nat’l Assoc. of Counsel for Children