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A Non-Moving Parent's Defense to a Move-Away Case

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.