Relocation and Custody – Part Two

child custody attorney st louis mo

In our previous post, we discussed how Missouri has specific requirements that must be followed by a parent seeking to relocate the residence of a child. Assuming the relocating parent complies with notice, what must the nonrelocating parent do to prevent relocation?

First, the statute places a 30-day period after receiving proper notice for the nonrelocating parent to file a motion and affidavit objecting to relocation. As with the notice requirement, courts tend to strictly construe the 30-day requirement – wait beyond 30 days to object and the court may deem the delay as consent to relocation.

The nonrelocating parent must file with the court a motion and affidavit stating the specific factual basis supporting a prohibition of the relocation. Subsequently, the relocating parent has 14 days to file a motion and affidavit supporting the relocation and a proposed parenting plan. For good cause, a court can extend the 14-day deadline.

The purpose of the affidavit and counter-affidavit is to supply the court with a framing of the issues for relocation. For example, the party seeking relocation may have a new job opportunity out of state, and the party objecting may claim that the joint custody schedule of 50/50 time will become unworkable and will do real harm to the parent-child relationship.

Relocation cases can be very difficult because both parties may have good reasons for their positions. But the statute does give a standard – a parent may relocate the residence of the child if the relocation is made in good faith and is in the best interests of the child.

The standard is not detailed or specific, but case law has helped define what these concepts mean. Good faith is essentially any reason that does not seek to intentionally deprive the other parent of physical custody or visitation with the child. A parent who has a new job opportunity that will greatly increase salary and will benefit the overall welfare of the child will be considered to be acting in good faith. A parent who leaves to follow a new boyfriend or girlfriend after a few dates will likely be presumed to be acting in bad faith.

Ultimately, when looking to the overall move, the court will consider the best interests of the child, which requires looking at a variety of factors, including the current physical custody schedule of the child, the distance between the current residence and the new residence, the degree to which the relocation will enhance the economic benefit to the care of the child, the attachment the child has to the present community, including family and school, and the overall impact on the ability of the nonrelocating parent to maintain frequent and meaningful contact with the child. The court can also consider the age of the child, and if a teenager, the court may give more weight to the wishes of the child. The relocating parent has the burden of convincing the court the move is in the best interests of the child.

It is impossible to say how a court evaluates relocations with any hard and fast guidelines because each case is different and must be based on what will be best for the child. Parents wanting to relocate maximize their chances when they can show economic benefit to the move, a new residence of equal or better standing in terms of community and school, and a revised parenting plan that gives the nonrelocating parent periods of physical custody in toto as close to the existing parenting plan.

Some nonrelocating parents may see the relocation as so unworkable and so against the interests of the child that they will seek to switch custody so that they become the residential parent.
What can parents do to minimize conflict and work to a solution not chosen by the court? Well in advance of any actual notice, the parent interested in relocating should sit down with the other parent and have an honest and frank discussion about this possible relocation and seek input as to potential custody solutions, including the way periods of custody will be distributed, who will pay for transportation and what impact the relocation may have on child support. The periods of physical time and various financial aspects allow for significant room for creative compromise.

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