Relocation after Divorce; Part I

While relocation is difficult for any Twenty-First Century family; relocation in a divorced home creates a situation that leads to conflicts and challenges that place a great deal of stress and anxiety on both the parents and the children alike. While we all recognize there are many reasons families need to move; for some it is the promise of a better job or a nicer home, while others move to be closer to family members and support structures. Often these are the reasons for a divorced family to move as well, however sometimes the motives for a move in a divorced family are not always so well intentioned.

When one divorced parent moves it becomes a matter where the courts will ultimately be involved. The law regarding child custody and the relocation of parents adds a layer of complication to any move by divorced parents. When there are hostilities, it makes matters more complex. The relocation of divorced parents is challenging work for the lawyers and judges that handle the cases.  This article is the first in a series of four on the issue of child custody and moving after a divorce.

Sometimes parents move to aggravate the other or make access to the children more difficult. Even in cases with good intentions, sometimes the parent that is not moving is left with a lot of anger and loneliness. One main reason a parent will look into going back to court to modify a prior custody award or parenting plan is when the other parent is moving away. These cases provide a lot of challenges for child custody lawyers as they try to work with parents to hammer out the logistics of a relocation to insure the best interest of the children. This is not so easy because usually each parent has their own idea of what is best for their children.

Whether the parents are moving across town or across the country, there are challenges that need to be tackled; relocation changes many of the day to day aspects of a child's life. Even moves across a county can change the schools a child attends and the transportation arrangements for children. The greater the distance, the more it will effect the ability of the parents to share time with the children. This is especially true in cases where parents have shared custody plans.

Prior to 2003 there was very little a parent could do to modify a parenting plan where the custodial parent elected to move out of the immediate area or even out of state. There was a presumption under the law that it was in the best interest of the children to move with the primary custodian. This made is nearly impossible to keep a parent from taking children far from their other parent, extended family and friends; even if it were just out of spite for the non-custodial parent.

This was especially problematic in a shared parenting plan where there is no primary custodian and the very nature of the plan required the children to flow back and forth between two homes. Many people established what was called a Carr provision named for the Georgia Supreme Court opinion that authorized the terms, Carr v. Carr. A Carr provision set out that in a shared custody situation, the parent leaving a certain geographic area automatically lost custody of the children.

In 2003, two cases came out of the Supreme Court of Georgia that effected the ability of one parent to modify a custody order when the other parent was moving. The first case was Scott v. Scott which put an end to the Carr provisions. Basically the Supreme Court held that there can be no automatic changes of custody, instead a court must review the present circumstances and make a determination of what is in the best interest of the children before custody of children can change. While this took away the invisible fence that made a shared parenting plan possible, it did set up the Supreme Court for its decision in the second case of 2003, Bodne.

The Supreme Court in Bodne v. Bodne reversed years of precedent that held there was a presumption of law that the relocation with the primary custodian was in the best interest of the children. The Bodne case concerns a custodial parent that was relocating out of state in order to further his career. The relocation would hinder the relationship of the children with the other parent. Building on the Scott case, the Court held that there is no automatic presumption of the best interest of the children. Once a parent established that there is a substantial change in circumstances, then a court must review what is in the best interest of the children.

Since Bodne, the things courts look at in deciding custody in face of a relocating parent are; the motive of the parent in relocating, relationship of the child with each parent, distance of the relocation, the child's relationship with extended family, child's connection to friends and school, as well as a child's ability to adjust to the move. Of course the courts will also look at the suitability of the the parent asking for custody.

Once there is a determination regarding the best interest of the children, that is only the beginning. The hard work begins in developing a parenting plan that will insure each child will have a relationship with both parents. The logistics of allowing each parent to spend time with the children as well as the responsibility of the costs are just some of the issues that must be addressed.

The next article in the series will address the details of a parenting plan post relocation. The third article in the series will talk about what court and where issues regarding relocation cases take place. The final article will address concerns for both the moving parent and non-moving parent when relocation occurs.

Eric Ballinger is 20 year veteran Family Lawyer

His website is ballingerlawyer.com