Shannon K. Brophy

The issues of child custody and visitation are complicated enough in any divorce or separation, but what happens when the custodial parent wishes to move out of the area with the child? The custodial parent may view the relocation as offering an improved quality of life while the non-custodial parent may view it as interfering with forming and keeping a meaningful relationship with the child. Because both views may be valid, it is up to the court to decide what is in the best interests of the child. The following article explains how the court determines whether or not to allow relocation.

When it comes to relocation, the court will look at the specific circumstances of each case; there is no hard and fast rule to predict the outcome. Each parent will need to prove why the court should or should not allow the custodial parent to move with the child. In Gruber v. Gruber, the Pennsylvania court explained the three-part analysis it applies in relocation cases, whether the parent is moving across the river to New Jersey, across the state to Pittsburgh, or across the country.

Potential Advantages
First, the custodial parent has to prove "the likelihood that the move will substantially improve the quality of life for the custodial parent and the children and is not the result of a momentary whim on the part of the custodial parent." Quality of life improvements can take many forms: a higher paying job, a lower cost of living, the chance to return to a network of family and friends, educational opportunities, or an improved physical environment in which to live and raise children. The emphasis on this requirement is that it be a substantial improvement. The courts have consistently turned down relocation requests where the economic improvement or social improvement, while real, was not substantial. Furthermore, while the court will recognize that an improvement in the quality of life of a parent will likely benefit a child to some extent, the focus is on the potential benefit to the child-and not to the parent. For example, relocating with a new spouse will likely provide a significant benefit to the custodial parent, but it may not provide enough of a benefit to the child to justify the move.

Integrity of Motives
Next, the court will look to the integrity of the parties in either seeking the move or seeking to prevent it. A custodial parent will not be allowed to relocate with the child if it appears that the intention is to prevent the non-custodial parent from seeing the child, regardless of what quality of life improvements the move might offer. Likewise, the court will consider whether the non-custodial parent is legitimately concerned about the impact on the parent-child relationship, or just wants to frustrate the move for selfish or vindictive reasons. How well the parents have handled visitation while living locally plays a large factor in the court's impression of this issue. If the parties consistently fought over visitation when they lived across town, it seems unlikely they'll be able to make a cross-country visitation plan work.

Substitute Visitation Arrangement
Finally, the custodial parent must offer concrete evidence of how the relationship between the non-custodial parent and the child can be maintained and fostered. The court does not require that the visitation schedule remain unchanged. Obviously, if a parent is looking to relocate to California, the non-custodial parent can no longer have visitation every other weekend. Moreover, the court does not require that the non-custodial parent have the same amount of visitation previously enjoyed. The more common visitation arrangement involves spending summer vacation and some school year vacations with the non-custodial parent. The court has consistently found that a longer consecutive visitation time makes up for any decrease in total visitation. The court will also consider the age of the child and the ability of the parties to actually make the new visitation schedule happen. An infant cannot be expected to fly cross-country alone. Nor can a party with exceptionally low income be expected to pay for regular plane trips. However, the court has looked at the potential plus-side to traveling a distance for custody exchanges; hours spent driving may provide an opportunity for uninterrupted conversation between a parent and a child.

Conclusion
Whether the relocation in question has to be worked out by a judge, or can be agreed to by the parents, the best interests of the child is always the most important factor. Sometimes the move will be in the child's best interests; sometimes, it will not. It is recommended that both parents consider the court's three-part analysis-quality of life improvements, the integrity of the parents' motives and ease of visitation-prior to planning a move. For more information, contact an attorney in the MacElree Harvey Family Law Department.

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