What happens to custody when a divorced parent wants to relocate?

New custody and visitation orders may be needed.

The divorce is over and the parents and children have settled into the rhythm of the new arrangements governing custody and visitation. It is not unusual for life to go in new directions after a marriage has ended and sometimes that includes a major geographical move. For the parent of a minor child subject to a court order controlling custodial arrangements, this decision - or the decision of the other parent to do this - usually means going back to court to get a change in the custody order.

Complications

Relocation raises both legal and practical challenges. If the moving parent has physical custody the majority of the time, he or she will likely ask for the child to be allowed to move with him or her. If this move is a significant distance - across the state, to the state next door, even across the country or to another country - the parent left behind is likely to object because of the difficulty of spending time with the child and the high cost of transportation, especially if the parent has regular contact with the child.

Notice of moving

Maryland statute provides that the original custody order may include a requirement that either party give the other (and possibly the court) at least 90 days notice of "the intent to relocate the permanent residence of the party or the child either within or outside the State." If a parent must relocate for "financial or other extenuating circumstances" in less than 90 days, if notice is given within a reasonable time, it may be a defense to the lateness.

If either party petitions the court within 20 days of the notice, an expedited hearing will be scheduled.

Negotiation

It is often possible for the parties, usually through lawyers, to negotiate an agreement to modify the original court order that will create new custody and visitation arrangements. However, this is not always possible. If no agreement is reached, a judge will have to make new custody decisions for the family and modify the earlier court order accordingly.

The child's best interest

A Maryland judge deciding custody arrangements in a relocation request uses the same standards that applied in the initial decision: the best interest of the child. To do so, the judge may consider a number of relevant factors laid out in case law. At the judge's discretion, if the child is sufficiently mature, he or she may be interviewed by the judge in chambers to give the child a chance to express his or her preference.

The state courts recognize the wide discretion the best interest determination gives judges. Using often-quoted language in these cases, there is "no litmus paper test" giving an "easy answer" to custody decisions. What is in the best interest of a child is an "amorphous notion" that varies with each situation. The judge must evaluate the two homes and "predict with whom the child will be better off in the future."

In a relocation case, the stakes are high. The judge could even decide to switch custody to the other parent if the judge feels the child's best interest lies in not moving, but in remaining in his or her current school or near a medical provider, for example. If custody remains with the moving parent, the judge could order visitation consisting of longer stretches during school holidays and summers, or a regular schedule of electronic communication.

Anyone in Maryland on either side of the relocation question should seek legal advice as soon as possible.

Family lawyer Christine Saverda Nielson of the Law Office of Christine Saverda Nielson, P.A., in Towson serves clients in matters of relocation, whether seeking to relocate or opposing it, throughout the Baltimore metropolitan area.