What You Should Know About Relocation

Relocation

We live in a mobile society; people will move residences multiple times, and sometimes travel to another state or even another country. But relocation can have a devastating impact on the ability of children of parents who no longer live together to maintain frequent and meaningful contact with both parents. How does Missouri law approach relocation?

In Missouri, relocation is governed by a specific statute – Section 452.377 RSMo. First, the statute defines relocation as “a change in the principal residence of a child for a period of ninety days or more but does not include a temporary absence from the principal residence.” Second, the statute requires any party under a court-ordered custody plan – whether through a divorce or paternity action – to provide a specific form of written notice to any party with custody or visitation rights.

The Missouri notice provision is very specific and must contain the following information:

  • The intended new residence, including the specific address and mailing address, if known, and if not known, the city;
  • The home telephone number of the new residence, if known;
  • The date of the intended move or proposed relocation;
  • A brief statement of the specific reasons for the proposed relocation of a child, if applicable; and
  • A proposal for a revised schedule of custody or visitation with the child, if applicable.

The notice must be given in writing by certified mail, return receipt requested, at least sixty days in advance of any proposed relocation.

A parent should not take the relocation provisions for granted nor should a parent simply assume relocation is a “given” and will be accepted by the other parent or the court. By statute, every custody judgment has the relocation requirements set forth in clear language, so no parent can claim a lack of notice of the relocation law.

A parent who disregards the relocation notice requirements will not be able to relocate the residence of the child. So, for example, a parent who provides no notice or gives written notice lacking the required information or gives notice less than 60 days in advance will be deemed by the court to have provided deficient notice and would have to start the process anew. If, after giving deficient notice, the parent relocates with the child, a court will order the child returned to the previous address or to the custody of the other parent and could even consider the improper relocation the basis to modify custody.

Often people relocate because of work requirements or remarriage, and when these people give insufficient notice and move with their new job or new spouse, they will have to return the child to the previous residence. If the non-compliant parent does not want to return with the child, that parent will have to leave the child with the nonrelocating parent until a court can address a new custody schedule under a proper relocation or modification.

Our courts take a rather strict view of compliance, believing the nonrelocating parent has an absolute right to the information about the relocation set out in the statute. For example, our courts have held that the new residence information gives the nonrelocating parent the opportunity to evaluate the proposed residence for fitness.

Assuming the relocating parent complies with the 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 the relocation. As with the notice requirement, courts strictly construe the 30-day requirement – wait beyond 30 days to object and the court deems 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 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 at 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.

Should you need the advice of a divorce and family law attorney or have questions or concerns about your situation, know that we are here to help and discuss those issues with you.