Important Relocation Case – 60 Days Means 60 Days

St. Louis Divorce Attorney, Jonathan Marks

An important and recurring issue in custody cases involves the right of one parent to relocate and how to properly gain permission from the other parent or the court.

Missouri has a specific relocation statute, Section 452.377 RSMo, that states a parent seeking relocation must provide written notice, by certified mail, at least sixty days in advance of the proposed relocation, and that this notice must contain the proposed new address, the proposed moving date, the new phone number, the reasons for the proposed relocation, and any proposed changes to the Parenting Plan.

Missouri case law generally favors strict compliance with the statute, which means the failure to satisfy any of the requirements in the statute renders the notice non-compliant and does not begin the formal relocation process and importantly does not give the parent seeking relocation permission to move.

Once a parent gives proper notice, the other parent has 30 days to file a motion and affidavit objecting to the relocation. The courts have been strict in enforcing this time limit. If timely filed, the relocating parent has to file a response in support of the relocation, a court date is set and, after a hearing, the court will decide whether the proposed relocation was made in good faith and is in the best interest of the child. Absent the timely filing of an objection to a proper notice, the relocating parent has an absolute right to relocate.

As noted above, Missouri has generally favored strict compliance, but some cases have suggested that actual notice would be sufficient. In Ashton v. Ashton, decided this week, the Western District did not give a complete answer on this question, but seems to suggest that strict compliance with the statute is how courts will interpret compliance.

In Ashton, mother, on March 12, sent via email a notice to father of her intent to relocate on April 1, only 20 days in advance of relocation. She gave all of the other information. Father received the email and sent a return email objecting. Mother did relocate, and father filed his objection on May 4. Mother moved to dismiss, claiming father knew of the relocation on March 12 but took more than 30 days to file his objection. Father argued that mother did not follow the statute in two key ways: no certified mail, and not at least 60 days in advance. The trial court granted the motion to dismiss, but the Western District reversed. While not directly addressing whether actual notice qualifies under the statute, the appellate court did state that the trend in the courts is toward strict compliance with the letter of the statute. The appellate court sidestepped the issue because of the blatant non-compliance with the 60 day advance requirement. Importantly, the appellate court held that strict compliance with the 60 day rule is required, and the “exigent circumstance” exception requires court approval, which means mother would have had to file a motion to modify in order to get permission to have the right to relocate.

It is always the best practice in relocation to strictly follow the statutory requirements. It seems the courts will continue to enforce those rules strictly, and that the relocation clock does not begin until the relocating parent properly complies with the statute.

If you have questions about relocation, contact us – we can help.