When is a Modification Not a Relocation?

On behalf of The Marks Law Firm, L.L.C. posted in Child Custody, Relocation and Motion to Modify on Tuesday, February 18, 2014

In Missouri, the relocation and modification statutes have some overlap, and that overlap can create some confusion for parents trying to determine the proper legal action to take in certain situations.  The Eastern District of the Missouri Court of Appeals recently had occasion to clarify this distinction in Gaudreau v. Barnes.

Under the Missouri relocation statute (Section 452.377), a parent seeking to relocate the “principal residence” of the minor child must file a notice of relocation at least 60 days in advance of the proposed date of relocation, deliver the notice by certified mail, and include the new address and phone number, the proposed date of relocation, the reason for relocation and a revised schedule of physical custody.  The non-relocating parent, after receiving proper notice, has thirty days to file an objection to the relocation.  If the non-relocating parent fails to object within the proper time, the relocating parent may relocate freely.  If the non-relocating parent timely objects, the relocating parent must file an affidavit in support of relocation and the court will have to decide whether the proposed relocation is made in good faith and is in the best interests of the minor child.  The court cannot alter the award of legal or physical custody in a relocation hearing; it can only revise the schedule of physical custody.

The Eastern District in Gaudreau did clarify the meaning of “principal residence” in the relocation statute, indicating that it is the residence of the sole physical custodian when one party has sole physical custody but the residence of both parties if they share joint physical custody, even though one parent has the designation of “residential parent” for mailing and educational purposes.  Hence, in any joint physical custody scenario, when either parent wants to change his or her physical residence, he or she must file a proper notice of relocation.

Under the Missouri modification statute (Section 452.410), a parent may seek to modify an award of physical or legal custody if a substantial change in circumstances has taken place since the entry of judgment and the modification would be in the best interests of the child.  A proposed relocation could qualify as a change in circumstance warranting a modification.

So, when does a parent need a modification?  If a relocating parent feels that the current award of custody would no longer serve the best interests of the child after the relocation, the relocating parent should serve proper notice of proposed relocation and file a motion to modify custody; otherwise, the relocating parent need only serve proper notice of proposed relocation.  Note that a parent seeking to relocate and modify must serve proper notice and file a motion to modify; the latter will not take the place of the former (though some cases have interpreted a motion to modify as notice of proposed relocation).

Relocation cases do not always need a pairing with a motion to modify because the relocation may not impact the current custody award in any substantial way – as, for example, when a parent moves only a distance of 10 miles.  However, if that move would affect where the child attends school, the non-relocating parent may decide modification is necessary.

What made the Gaudreau case factually interesting was that mother relocated to Montreal during the divorce proceeding, so at the time of the entry of judgment she resided in Montreal and father remained in St. Louis.  When the arrangement no longer seemed to work as set forth in the Parenting Plan, mother filed a motion to modify custody and father countered that it was really a relocation case.  However, as the Eastern District noted, because the relocation took place before the entry of judgment, it was not a relocation case.  And, because mother sought to modify the schedule of physical custody, her only means of doing so would be through a motion to modify.

If you have questions about relocation or modification, contact our St. Louis family law attorneys – we can help.