Relocation After Divorce With Children: Does the Child’s Best Interest Need to be Proven?
When the parents of a minor child get divorced in Missouri, their relationship as co-parents continues even after their marriage ends. Missouri law presumes that maintaining a close relationship with both parents is best for a child. Co-parenting plans tend to assume that both parents will continue to live close to one another so that the child can go between the parents with relative ease. What happens, though, if the parent with whom the child primarily resides wants to move and take the child with them? Missouri law has strict procedures for relocating with child after divorce. The parent intending to move with the child must notify the other parent, who may challenge the relocation in court. If you or your ex-spouse intends to move with a child after a divorce, a Missouri family law attorney can advise you of your options and advocate for your rights.
Types of Child Custody in Missouri
Missouri’s family laws identify two types of child custody:
- Legal custody refers to the right to make decisions regarding a child’s education, health, and general well-being.
- Physical custody refers to the right to parenting time with the child, along with the responsibility to care for the child during those times. Missouri law presumes that the child should have “significant, but not necessarily equal, periods of time” with each parent, in order that they can have “frequent, continuing and meaningful contact with both parents.”
A court may award custody to parents in several ways:
- Joint custody: The parents share the rights and obligations of custody and consult with one another on major decisions.
- Sole custody: One parent exercises custody rights and provides information to the other parent.
Possible custody arrangements include:
- Joint physical and legal custody by both parents
- Joint physical custody by both parents and sole legal custody by one parent
- Sole physical custody by one parent and joint legal custody by both parents
Relocating With a Child After Divorce
“Relocation,” according to Missouri law, means a change in a child’s primary residence for at least ninety days. It does not include residence changes that are intended to be temporary, such as if one parent takes the child to visit relatives for several weeks or the child goes to summer camp.
This definition of “relocation” does not specify a distance. The law governing the relocation of a child applies whether a parent intends to move them to another state, another city, or down the street.
Notice of Relocation
A parent who intends to relocate with a child must give notice to anyone who has custody or visitation rights. Unless the parent can show “exigent circumstances,” they must provide this notice sixty days or more before the move. The notice, often known as a child custody relocation letter, must be in writing and sent by certified mail, return receipt requested. It must include the following information:
- The date of the planned or proposed move
- The address and home phone number of the new residence, or the city if they do not know the address yet
- A statement of the reason(s) for the move
- A proposed revised parenting plan and visitation schedule, if the current one would no longer be feasible
- A statement that the other parent has the right to file a motion with the court opposing the move
Objecting to Relocation
A parent with custody rights may file a motion objecting to a proposed relocation in the court that issued the current custody order. They must file this motion no later than thirty days after they receive the notice of relocation. The motion must include a notarized affidavit “setting forth the specific good-faith factual basis supporting a prohibition of the relocation.”
The parent planning the move has fourteen days to file a response to the motion, along with a counter-affidavit and revised parenting plan. From there, the parents may work out a settlement, or they can take the matter to court.
Best Interests of the Child
As with most matters involving child custody, relocation must be in a child’s “best interests.” Winning a relocation claim, therefore, requires convincing a judge that moving a child either would or would not serve the child’s interests. An experienced child custody attorney can help you develop the best argument for or against relocation.
State law identifies eight factors that courts must consider when determining a child’s best interests with regard to custody and parenting time. Several of these factors can be particularly relevant to relocating with child after divorce disputes:
- The child’s need for “frequent, continuing and meaningful relationship[s]” with both parents, and each parent’s “willingness…to actively perform their functions” as parents
- The child’s relationships with other family members and friends
- Whether a parent will allow the child to have “frequent, continuing and meaningful contact with the other parent”
- The child’s connection to their current “home, school, and community”
- The child’s wishes regarding custody and visitation
A recent decision by a Missouri appellate court identified three elements that a court must determine in order to approve a disputed relocation:
- Relocation is in the child’s best interests.
- The planned relocation is in “good faith,” meaning it has no deceptive or ulterior motive.
- The parent planning the move can establish that it is in the child’s best interest.
How to Win a Relocation Custody Case
A successful motion to relocate requires a compelling reason for the move and evidence that it will serve the child’s best interests. This might involve demonstrating that the child will be able to retain meaningful contact with family and friends, or that their school at the new location will be even better for their education and development. The parent should demonstrate that they are willing and able to help the child maintain a relationship with the other parent. If the child is in favor of the move, that can help, but it cannot be the only factor presented to the court.
Opposing a motion to relocate involves demonstrating that the move would not be best for the child. Suppose, for example, that the proposed relocating with child after divorce is more than one hundred miles away. A parent who has had roughly equal parenting time could argue that the adjustment to only occasional contact would be detrimental to the child, especially if the child has no other family at the proposed new location.
Mark A. Wortman is a family law attorney in Kansas City who has dedicated 100% of his practice to representing people in family law matters like divorce and child custody disputes. Please contact us today online or at (816) 523-6100 to schedule a confidential consultation to discuss your case.