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Americans live in an increasingly mobile society, a trend that is making it more difficult for families to develop and maintain close ties with relatives, friends and community institutions.
The problem is magnified when, in the context of the divorce, one of the parents proposes to take their child and relocate to a new community, leaving the other parent behind. At the point, the child faces not just the breaking of the family unit into two households, but a father drastic change in the nature of contact with one of the parents.
The possible legal responses and remedies to such a situation very widely, depending on such factors as the motivation for move, whether the propose comes at the time of the dissolution or post judgment and/or state law imposes conditions or restrictions on the right to relocate.
(The winter 1989 issue of Family Advocate, published by the ABA Section of Family Law, is devoted to this topic)
The legal systems view of the situation may depend as much on the labels attached to the relationships between the parents and the child as on the actual nature of parental involvement in the child's life. For example, a custodial parent who has sole legal and physical custody may have far greater discretions to relocate than a parent who has joint legal and/or physical custody.
In the past, parents seeking to relocate, their attorneys and many judges commonly assumed that somewhat expanded visitations during summer and school vacations would be a satisfactory alternative for parents and children who formerly had enjoyed contact on a regular, more frequent basis.
One can hardly imagine that such an alternative was ever palatable to a caring and involved parent whose child was about to be moved to a distant locality.
Mental health professionals also now suggest that the emotional developmental and other needs of the children of divorced parents are best satisfied by regular and frequent contact with both parents.
Thus, there is clinical validation for the "gut" feelings of many divorced parents that one or two long visits per year will never be as good as the regular and frequent contact that is possible when the parents live near each other.
Nevertheless, , job opportunities, economic conditions, the needs of a new spouse or other factors may make it possible for many parents to remain indefinitely in the localities in which they had resided before their divorces.
The heart of the matter
In general, courts will scrutinize the motivations of both parents concerning a proposal by one of them to relocate with the child.
The parent opposing the move will frequently be driven by the obvious desire to perverse and promote his or her relationship with the child. That parent also will usually emphasize the advantages to the child of stability and continuity in schools, familiarity with friends and family.
The response is often that the "real" motive of the parent seeking to prevent a move is a desire to continue to control or interfere with the life of the other parent.
Similarly, the parent proposing the move is frequently accused of trying to dispute or cut of the relationship between the child and the parent remaining behind. The parent seeking to move may counter with claims that the new locality offers better educational opportunities, a better or more affordable standard of living, or other improvements in living conditions.
Courts considering proposal by parents to relocate are generally required to consider the best interest of the children, but it is common or the interest of the parent and the child to diverge in relocating cases.
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