If You Have a Child, Can You Relocate After a Divorce?

The short answer is: If you have custody of a child, and you’re moving at least seventy-five miles, you must give your ex-spouse at least sixty days notice in advance of the move. Your ex-spouse then has thirty days to file, in court, an objection to the relocation. If your ex does not object to the relocation, you may relocate without further approval. If your ex objects to the relocation within thirty days after receiving notice, then the judge must decide whether to permit the relocation.

The law on relocation after divorce is found at Title 43, Section 112.3 of the Oklahoma Statutes. This law applies to anyone who has rights to custody or visitation of a child in any court case – not just divorces. Thus, the law also applies to paternity cases, guardianships, and any other case where custody of a child is at issue.

Who needs to send notice of relocation?

You need to send notice of relocation if:

·         You have custody of a child, and

·         You are moving the principal residence of the child a distance of over seventy-five miles, and

·         The child will be living at the new residence for at least sixty days, and

·         Your move is not a temporary absence from the child’s principal residence.

If you do not have custody of the child, but have only visitation rights, you need to give notice if you are changing your primary residence (regardless of the distance). However, no one may object to your move.

What does the notice need to say?

In the notice, you must inform the other parent:

·         Your intended new address

·         Your new mailing address (if different from the physical address)

·         Your new telephone number

·         The date of the move

·         Reasons you are moving

·         A proposed revised visitation schedule

·         A warning to the other parent that if he/she does not object to the relocation within thirty days after receiving notice, you may relocate without further approval.

When do you need to send notice of the relocation?

You need to send notice at least sixty days before your move. If you find out about your impending move less than sixty days before your move, and it’s not feasible to change the date of your move, then you need to send notice less than ten days after you find out about the impending move.

To whom do you need to send notice?

You need to send notice to “every other person entitled to visitation with the child.” Thus, if you are divorced, you need to send notice to your ex-spouse (if your ex-spouse has visitation rights). Or if, for example, a grandparent has visitation rights, then you need to send notice to the grandparent as well. Or, if you are a non-parent who has guardianship over a child, you need to send notice to any parent who has visitation rights to the child.

How should you send the notice?

The state statute says that you need to send notice “by mail” to the person’s last known address. One court case holds that you have to send notice by certified mail.

What if the relocating parent doesn’t properly give notice?

If the relocating parent doesn’t give notice, the judge may do any or all of the following:

·         Deny the parent’s right to relocate

·         Change custody or visitation

·         Order return of the child if the parent has already relocated

·         Order the relocating parent to pay the other parent’s costs and attorney’s fees incurred in objecting to the relocation

·         Hold the relocating parent in contempt of court.

After a person receives notice of the relocation, what can they do?

If the person who received notice of relocation is a parent, the parent may go to the court that issued the original custody order, and file an objection. The parent must file this objection within thirty days after he/she receives notice. The parent may ask for a temporary or permanent order to prevent the relocation.

If the person who received notice is not a parent, then the non-parent may not seek an order preventing the relocation. However, a nonparent may go to the court that issued the custody order and file a request for a revised visitation schedule. The nonparent must file this request within thirty days after receiving notice. A court may issue a revised visitation schedule for a nonparent.

If someone files an objection to the relocation, what may the judge do?

If someone objects to the relocation, the judge will order a hearing on the merits. At the hearing, the judge will decide whether to allow the parent to relocate with the child. Before the hearing, the judge may issue a temporary order either permitting or preventing the parent from relocating during the pendency of the case.

How does a judge decide whether to allow a parent to relocate?

The law says that a judge may take into account:

·         The “nature, extent, and quality” of the child’s involvement with the relocating parent and the nonrelocating parent, as well as the child’s involvement with siblings and other persons

·         The age and development of the child, and the effect the relocation will have on the child’s development

·         Any special needs of the child

·         Whether, and to what extent the nonrelocating parent will be able to preserve his/her relationship with the child after the relocation

·         The child’s preference, if the child is old enough and mature enough that the court believes the child is able to form an intelligent preference. For more information on when a court may take a child’s preference into account, read my post here.

·         Whether the relocation will be good for the quality of life of the child and the relocating parent

·         The reasons for relocating, and the reason that the other parent opposed the relocation

·          “Any other factor” that affects the child’s best interests.

The law also says that a judge may not:

·         “give undue weight” to a temporary relocation, if the court has allowed a temporary relocation

·         Consider whether the person seeking to relocate has said that he/she will not relocate if the judge denies relocation of the child.

A parent seeking to relocate has the burden of proof that his/her reasons for relocating are made in good faith. If the parent proves that he/she has a good faith reason to relocate, then the objecting parent has the burden of proving that relocation is not in the best interests of the child.

To illustrate when a court is likely to permit relocation, it may be helpful to provide examples of cases where courts did and did not permit relocation:

·         Father and Mother were both licensed physicians. When the parents were divorced, Mother was studying in a fellowship program in Oklahoma City.  The court awarded Mother custody. After Mother completed her fellowship, Mother obtained a job at a hospital in New York. Father claimed that the proposed relocation was not in good faith, because Father presented evidence that Mother could have found a job in Oklahoma. Mother, however, stated that she had not received any job offers in Oklahoma, and the court found that Mother’s reasons to relocate were in good faith. Thus, the burden shifted to Father to prove that relocation was not in the best interests of the child. The court found that Father met this burden, because Father proved that a move by Mother to New York would disrupt Father’s visitation. The court denied Mother’s request to relocate.

·         Mother was awarded primary custody in the divorce. Mother notified Father that she wanted to relocate to Louisiana, because she had found a job in Louisiana, and she had over thirty family members in Louisiana. Father claimed that Mother’s real reason to relocate to Louisiana was to be closer to her new boyfriend; Father claimed that this was not a good faith reason. The court found, however, that Mother had a good faith reason to move to Louisiana because she had family and a job opportunity there. Thus, Father had the burden to prove that relocation was not in the child’s best interests. Father’s only evidence here was that the move would hamper Father’s visitation. However, the court found that because Mom was willing to work with Dad to create a new visitation schedule, the move was in the best interests of the child. The court allowed Mother to relocate.

·         Father obtained custody in the divorce. Father remarried, and his new wife was a university professor in New York. Father sought to relocate to New York so that he and the children could live together with his wife. The trial court found that Father’s reason for relocating was in good faith. The trial court then held that Father had the burden of proving that the relocation was in the best interests of the child. The appeals court reversed, holding that once a parent proves that his/her reasons for relocating are in good faith, that parent does not need to prove that the move is in the best interests of the children. Instead, the other parent must prove that the relocation is not in the best interests of the children. Thus, the appeals court held that the trial court’s ruling was in error. The appeals court remanded the case back to the trial court for proceedings consistent with its opinion.

What if a parent objects to relocation without a good reason?

If a court finds that a parent had no real reason to object to the relocation, but was objecting merely to harass the other parent, the court may sanction the objecting parent and order him/her to pay a fine. The court may also order the objecting parent to pay the relocating parent’s attorney’s fees.

Do you have a relocation case? Contact the Persaud Law Office

Perhaps you’re seeking to relocate with your child. Or, perhaps you’re the noncustodial parent, and the other parent wants to relocate, and you wonder what your rights are. The Persaud Law Office has handled many custody cases, and we’re prepared to help you. Give us a call today.