Stricter Rules for Relocation?

relocation divorce child custody st louisThis week, the Eastern District of the Missouri Court of Appeals handed down its decision in Pasternak v. Pasternak, and gave further guidance to individuals seeking to relocate with their minor children.

Mother and father divorced in 2011, and the court awarded both parties joint legal and joint physical custody, with mother the residential custodian. Mother and father both worked for the Central School District in Farmington, and the children attended school in the district. One child had an individual educational plan (IEP) due to learning disabilities, and received significant special assistance.

Just before the entry of the divorce, mother had looked into the job market in Poplar Bluff with the intent to relocate. On the advice of her attorney, she stopped pursuing that prospect. However, for the next two years, mother began receiving a series of negative job reviews, and each time the district asked for her to make changes and improve, she chose not to do so. Finally, in 2013, the district informed her they would be terminating her employment. Mother located a job with a district in Silva, Missouri, where her parents and other family members lived. The job paid $20,000 less than her job with Central. Mother testified she would study for her master’s degree in Springfield, but she would have to pay that tuition herself, whereas Central would have paid for advanced education had she remained with the district. Mother did not look for any jobs closer to Farmington.

The record made clear that the parties had difficulty getting along, though it did not allocate responsibility to one parent or another. Both parents claimed alienation. The children had sessions with a counselor, who testified that it would be in the best interests of the children not to relocate, as they had not adjusted to the changes wrought by the divorce.

Mother properly notified father of her intent to relocate to Silva and cited the employment situation as her reason. Mother also filed a motion to modify seeking sole custody of the minor children. The court granted the relocation and motion to modify.

The Eastern District reversed. To establish grounds for relocation, the relocating party must adduce sufficient evidence that the move is made in good faith and is in the best interests of the children. The appellate court did not directly rule on the issue of good faith, though in a footnote it strongly suggested that the timing of the search for the job in Poplar Bluff and the failure of mother to take any corrective measures to retain her good job at Central gives the strong impression of losing employment to support a relocation. The appellate court did directly address the best interests of the children, and found the evidence wanting with regard to relocation. Even though Silva would be but an hour away, that distance would undo at least part of the custody schedule, eliminating weekday overnights and some weekends. Also, mother only stated in conclusory fashion that the school district in Silva was superior to Central. Father showed that it was a newer district that had significant limitations, particularly with regard to implementing the IEP. Finally, the testimony of counselor, who was a witness for mother, cautioned against a move. Based on these facts, and the undisputed reality that the move would cause the children to spend significantly less time with father, the Eastern District found the move was not in the best interests of the children and denied the relocation and remanded to the trial court to reconsider its change of custody.

Pasternak will again create some controversy, as some commentators believe Missouri is already too strict with regard to relocation. But a close examination of the facts show that mother did not do her homework and produce enough evidence of the move furthering the best interests of the children. Also, she had difficulty showing how taking a pay cut would increase the standard of living for the children. In this case, the children spent a great deal of time with father who was active in all facets of their lives, which mother did not contest. The children had friends and community support in Farmington, and the school itself served the needs of the children. Given that baseline, mother would have to make a very strong case to upset the lives of the children.

Relocation cases are always difficult because the court confronts the changes in the life of one parent and the status quo that the court originally intended as in the best interests of the children. To uproot the children and alter their lives and the contact with one parent, the court must have evidence of true need and best interests of the children. Given the state’s preference for frequent and meaningful contact with each parent, it is not surprising that the legislature requires a showing of good faith and best interests to support relocation. But no one should read this case as holding relocation is impossible in Missouri – each case turns on its own facts and the evidence presented to the court.

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