Can I (or my ex) relocate after divorce?


Relocating your family, whether you’re happily married, currently going through a divorce, or anywhere in between, can be a daunting process. Family law attorney and partner at Fox Rothschild, Sandra Fava, has some super helpful do’s and don’ts when it comes to relocating your family. 

Relocation, particularly since COVID, has become an even bigger issue in divorce. Since the beginning of the pandemic, more and more people have been switching to an online or virtual work setting, which has allowed people the freedom to work from anywhere they please.

This has prompted many people to flee large cities, such as NYC or LA. However, it also brings up an interesting question. If you’re divorced and share custody of your children, are you able to just pick up and move? In short…no. Unless the divorce agreement gives you that specific authority – which Sandra points out is very unlikely – you’re not able to just pick up and leave without the other parent’s approval. This is not to say that you can’t find a new house in town or move down the street. It is typical to set a radius clause or a set range of miles that the parents agree to live within so that they can share custody of their children. Parents often agree to this so their kids can attend the same schools, or stay with their friends. 

But because COVID has led to many industries being moved to a virtual work format, many families decided to move away temporarily, or at least went away with the intention of it being temporary. Here’s an example that may sound familiar: a divorced family lives on the east coast, but one of the parents decided to go to Austin, Texas during the pandemic, maybe they had family there and thought it would be a great opportunity to have some extended time with them.

But now they’ve adjusted and the kids love it and are happy with their new friends, and now that parent has decided that they want to stay in Austin permanently after being there for 18 months. But the parent on the east coast never gave permission for the kids to move so far away permanently, they had just verbally agreed that it would be ok as a temporary situation. So what now? The east coast parent is going to have a much harder time legally demanding the kids return home after such a precedent has been set, since they allowed the initial temporary move. 

It’s also important to be aware that in 2016 the standard for relocation changed so that it must be in the child’s best interest. In other words, the parents must present a case that shows that the move would not only not harm the children, but actually improve their quality of life through better schools, better access to healthcare, living closer to both parents etc.

The court ultimately wants to do what is best for the children, and avoiding constant flip-flopping from one house or school to another is one thing that they look for in these cases. 

While T.H.’s divorce experience really only had her kids going back and forth to homes both located a few miles apart, she wonders how the trauma of back and forth from house to house impacts kids? Sandra says that according to articles written by various forensic child psychologists, more often than not, these concerns over the logistics and day-to-day issues of living in two households are typically more a fear of the parents than the children.

Sandra points out that most of the time, the children just want to know that both parents want them around and want to spend time with them. She also says that sometimes older children can struggle more with this than younger ones, but in general the most important thing is making your children feel welcome and loved.

Sandra stresses the importance of not making your kids live out of a suitcase. “Please don’t suitcase your kid back and forth. Keep enough stuff at your house. They just need to come and grab whatever they have in their hands, whether it’s a teddy or something like that, and come to your house.”

Another issue that some of these newly relocated families have to deal with is when one parent relocated the children under false pretenses.

For example, let’s say a parent takes their kids to Florida for a vacation but then while they’re there, decides they want to move there and convinces the kids to agree with them. In a case like this, unfortunately the best course of action for the parent “left behind” is through the court, where they would file an emergent application. This will require that the kids be returned to wherever they’re from, immediately. However if you find yourself in a situation like this, it’s important to make your demands clear in writing before they even go. You must put a finite date or length of time that you are allowing the children to be away, so that if it becomes a court issue, you have evidence to use to support your case. 

You may be wondering, what’s the right/best way for someone who already knows they want to relocate after their divorce to prepare and go about relocating? Sandra emphasizes that you have to look at all your life’s puzzle pieces in the context of divorce. Things like, do you want to move back close to your family, or where you may have a better job opportunity, and if the kids are in school or not. You should also be open and honest about your expectations from the very beginning. To show up on the court steps and decide that you want to relocate after months of arbitration may just seem like a stab at your ex. Essentially it’s about being transparent with all of the parties involved and trying to do what is best for the kids/ family as a whole.

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