On many occasions, at some time after parents have obtained a court-ordered
custody and visitation plan, one party may desire to relocate to a distant
location with the minor child. A parent’s desire to relocate becomes
an issue when the relocation prevents the other parent from having frequent
and continuing contact with the child. In the legal community, these situations
are commonly referred to as “move away cases.”
In most situations, the non-relocating party has an equal right to parent,
and if necessary, should take legal action to prohibit the other party
from relocating with the child.
If the non-relocating parent has joint physical custody of the child, whether
pursuant to the Court’s orders or pursuant to the reality of the
custody-sharing situation, the parent must only request that the Court
not allow the relocating parent to take the minor child when he or she
moves, and instead to change the custodial plan to allow the child to
stay with the non-relocating parent. Though there is no “bright
line” for whether a person has joint physical custody of a minor
child, the Court generally recognizes that anything above a 30% timeshare
with the child constitutes de facto joint custody. The Court will analyze
such requests within the context of what plan is in the best interest
of the minor child.
However, if the non-relocating parent does not share joint physical and
legal custody of the minor child, but rather has less than an about 30%
timeshare, the relocating parent has a presumptive right to move. Therefore,
in order to prevail against the move, the non-relocating parent has the
onerous burden of proving to the Court that the relocation would be a
detriment to the child. Only upon a successful showing of a detriment
to the child resulting from the move will the court consider whether a
change in custody is in the child’s best interest.
If you find yourself involved in a situation in which one party would like
to move with a minor child, contact the experienced attorneys at Bremer,
Whyte, Brown, and O’Meara to assist you in resolving this matter.
