6 Factors to Consider When Deciding Relocation in Child Custody Cases

While having two parents who live not only in the same state, but within a reasonable driving distance from each other is ideal, this may not always be possible. Sometimes a move out of state is necessary due to employment, family, health, or remarriage. Other times, the ability to provide for a better standard of living may be available out of state. When parents have joint legal decision-making and substantially equal parenting time, justifying why a move is in the minor children’s best interest becomes the focal point of any contested hearing.

Ideally, you and the other parent should attempt to agree to a relocation and a long-distance parenting plan. If you both agree on the relocation, see your lawyer about making the necessary changes to the parenting plan.

If there is no agreement, you may be required to either give advance notice and see if your spouse objects, or seek permission from the court to relocate. If you believe your spouse is likely to object, you may wish to seek permission from the court so you can have the issue addressed more quickly than waiting the required number of days after giving notice.

If a hearing is requested and a trial on the issues is required, the court will determine whether you may relocate based upon the best interest of the children. The following are 6 factors that the court will consider and are also factors you and your lawyer should consider in building your case (or opposing a case) for relocation:

  • The reasons for relocation.
  • The prospective advantage of the move for improving the general quality of life for the parent or child.
  • The likelihood that the parent with whom the child resides will comply with parenting time orders after the relocation.
  • Whether the relocation will allow a realistic opportunity for parenting time with each parent.
  • The extent to which moving or not moving will affect the emotional, physical or developmental needs of the child.
  • The potential effect of relocation on the child’s stability.

Relocation cases are some of the most difficult cases for a judge. It is important to talk with your lawyer about the possibility of relocating sufficiently in advance of your move. If the relocation is necessitated due to employment or other immediate circumstances, your lawyer may be able to obtain a temporary order to relocate. In addition, it may be important to ask for an accelerated hearing so you will have a final court ruling determining whether you may move out of state with your child.

About the Authors:

Marlene Pontrelli is a Member in our Phoenix office. Marlene is a certified specialist in family law. Her practice focuses on all aspects of family law including dissolution, post-dissolution, paternity, child custody and child support matters. She is admitted to practice in California and Arizona. She is a member of the State Bar’s Family Law Practice and Procedure Committee and is a judge pro tem for the Superior Court of Maricopa County in family law. She has extensive trial and appellate experience including appearing before the Arizona Court of Appeals, Arizona Supreme Court and Ninth Circuit Court of Appeals.

Ms. Pontrelli has written several books, including as a co-author of the Divorce in Arizona book. She is a frequent lecturer in the area of family law and has conducted workshops throughout the country. Ms. Pontrelli is also an adjunct professor at The Sandra Day O’Connor School of Law at Arizona State University, where she teaches the family law class. Marlene may be reached in our Phoenix office at 602-285-5081.

Bob Schwartz is a Member in our Phoenix office. Bob has been practicing law for over 40 years, specializing in family law. He is a member of the American, Arizona and Maricopa County Bar Associations. He is admitted to practice in the federal courts of New York, Arizona, Ninth Circuit Court of Appeals, and the U.S. Supreme Court. Mr. Schwartz is a fellow of the American Academy of Matrimonial Lawyers and past president of the Arizona chapter. He serves as a judge pro tem for the Superior Court of Maricopa County in family court matters. He is a certified family law specialist by the State Bar of Arizona; is a frequent lecturer on family law and related matters; and, former member of the State Bar Family Law Advisory Commission. Mr. Schwartz has tried numerous complex business valuation cases as well as complex custody cases. He has testified as an expert in family law matters. Bob co-authored the Divorce in Arizona book. He may be reached in our Phoenix office at 602-285-5020.