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How Divorce Affects Relocating with a Child

Legal and logistical considerations for parents with shared custody who are considering moving after a divorce.  

If you are divorced or in the process of getting divorced, it’s important to understand the legal implications behind moving with your child. The first thing to pay attention to is the status of the different custodies.

There are two types of custody: physical and legal. Physical custody refers to where the child lives. Legal custody is the right to make important decisions about the child’s health, education, welfare, and more. Both custodies will be specified in the custody arrangement.

Can I move with my child?

This is a simple question with many possible answers. It depends on where you are moving to, what your relationship is with the other parent, and how your child custody agreement reads. The smoothest way for a custodial parent to relocate with children after divorce is for both parents to agree to the move, but more often than not, it isn't that simple.

Moving with my child before a divorce

If you are married and decide to move with the children, the court won’t step in unless the other parent files an action. After all, both parents have custody at this point, so it is legal for one parent to move with the children.

However, if you’re planning on getting a divorce, you are best off getting some form of written consent from the other parent before you move with the children. If you don’t and the other parent files an action, the court may order you to return the children to the other parent.

If you are considering a relocation so you can file for divorce in a different state, bear in mind that most states require a period of residency before you can file. The Uniform Child Custody Jurisdiction and Enforcement Act prohibits parents from filing for an initial custody determination outside of their home state. A home state is defined as the state where the child resided for the six months prior to the commencement of the custody proceeding. Unless there are extenuating circumstances, such as safety reasons, it’s likely you’ll have to apply for custody in your child’s home state.

Moving with my child once I’ve filed for divorce

Once you’ve filed for divorce, a temporary custody order will be put in place. Whether or not you can move with the children will be determined by this temporary custody order. Most states require some form of written notice or consent from the other parent before you can move with a child, particularly if the distance would significantly inhibit the ability of the other parent to spend time with the child.

If the noncustodial parent does not agree to the move or to new custody and visitation arrangements, a mediator may be able to help you and your ex reach a resolution. Otherwise, the custodial parent will need to file a petition asking the court to approve the relocation.

How does moving during divorce affect me?

Child custody and relocation laws differ by state. It is incredibly important to seek legal counsel if you or your ex is contemplating a move. All states want to do what is in the best interest of the child. Because shared parenting has been linked to better outcomes for children of all ages, co-parenting is generally preferred if both parents are fit, thus making a move with the child a sensitive issue.

Communicating openly and securely with your co-parent is important, and utilizing a co-parenting communication service such as TalkingParents could help. We offer a number of tools such as Easy & Secure Messaging, Accountable Calling, and a Shared Calendar to help parents resolve conflicts and document their conversations.

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