Can a Spouse Take a Child Out of State Without Permission?
Typically, a parent will have a post-divorce routine of custody and visitation for their children, which is outlined in a parenting plan. A parenting plan may be interrupted if a parent who has custody of a child decides to move to another state or somewhere that is far from the parent who does not have custody.
Do I Need Permission To Take My Child Out of State?
If you have sole custody, you generally don’t need permission. If you share custody, you may need the other parent’s consent.
The non-custodial parent may seek court intervention if he or she objects to the relocation or fears that they may lose a relationship with the child because of it. Because of this, most jurisdictions require that the custodial parent get permission from the court and show that it is in the best interest of the child to relocate.
1. Relocation and Child Custody Orders
There are 4 types of proceedings that may affect the custody of a child and trigger relocation issues. They are:
- Divorce;
- Guardianship proceedings;
- Juvenile court and neglect laws; and
- Adoption or termination of parental authority.
A legal custody order provides which parent has the authority to make major decisions involving the children’s life, including education, extracurricular activities, healthcare, religion, and time-sharing. An order may be modified if a parent has a substantial change in circumstances.
2. Custody Evaluation
During a custody evaluation, a professional assesses the family dynamics to recommend a custody arrangement that will be in child’s best interest. Such evaluation can be used for two purposes:
- As a guide to help parents come up with a custody agreement; or
- As a reference for the court to make a suitable arrangement for the family.
The custody evaluation varies in cost but may be worth the investment because it may significantly impact the outcome of your case.
3. Jurisdiction
Custody orders are governed by:
- The Uniform Child Custody Jurisdiction Act (UCCJA);
The purpose of the UCCJA is to promote and uphold the best interest of the children. It serves to prevent multiple child custody hearings in multiple states because it may cause confusion, delay child custody disputes, and have a negative impact on the family dynamic. Under the UCCJA, a court of a state will decline jurisdiction when the child and family have a closer connection in a different state; the child custody litigation will take place in the state most closely connected with the child. - The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA);
The UCCJEA was drafted to revise the UCCJA, and most states have adopted the former, as the latter was found to conflict with the Parental Kidnapping Prevention Act (see below). The UCCJEA has adopted a uniform process for registration and enforcement of interstate orders related to child custody.
Further, the UCCJEA had prohibited the wrongful removal of a child from his or her home state. A child’s “home state” is the one where he or she has lived with a parent (or a person acting as one) for at least 6 consecutive months prior to a child custody proceeding. If the child is less than 6 months old, the home state would be the one where they lived from birth with a parent or person acting as one. - The federal Parental Kidnapping Prevention Act (PKPA).
The PKPA is very similar to the UCCJEA. The only difference is that the PKPA does not have a temporary emergency jurisdiction provision if a child has been abandoned, or it is necessary to protect a child or her sibling because they are subjected to mistreatment or abuse.
4. Restrictions on Removing a Child from the State
The court has several options if there is a risk that one parent may violate a court order by removing a child from the state or the country, or if the parent has concealed the whereabouts of a child. The court may:
- Order that the parent may not remove the child from the state or country without notarized written permission from both parents;
- Prohibit a parent from taking the child to a country where the Hague Convention on the Civil Aspects of International Child Abduction is not ratified without a written permission from the other parent; or
- Require that a parent surrender the child’s passport.
The parent who is objecting to a child being removed from the state or country can send a certified copy of the court order to the Passport Services Office of the United States Department of State. The parent should also request that the agency not issue a passport to the child without the parent’s signature or further court order.
How Can Parents Agree to Moving Out of State?
The first step a parent can make is to give proper notice to the other party and get that party’s approval. The parent seeking to relocate should have a good reason, which may be getting a new job or moving closer to the family for additional support with the child. The relocating parent should also act in good faith and make efforts to move as close as possible.
How Do Courts Decide Whether to Allow Relocation?
Some jurisdictions require that a parent who desires to move with a child either:
- Obtains the written consent of every person entitled to time-sharing with or access to the child; or
- Serves a written petition to relocate on every person entitled to time-sharing with or access to the child.
You will have to research your state laws to see what is required in the petition.
Relocation Factors
In most jurisdictions, courts consider several factors that may affect the best interest of the child when one parent seeks to move out of state. These factors include, but are not limited to:
- The child’s age, needs, and, in case a child is mature enough, their preferences;
- The extent of involvement and duration of the child’s relationship with parents, siblings, and other people playing significant role in the child’s life;
- The current financial situation and employment of each parent and whether moving out of state will enhance a quality of life of a child and a parent;
- The reasons a person wants to move out or oppose the action; and
- Any history of domestic violence or substance abuse.
Impact Relocation Can Have on Children
Courts are usually reluctant to relocate a child because there is a need to provide children with stable environments and consistency. Moving can have both a positive and negative impact on children, especially those over the age of five.
Positive Impacts
- A better quality of life for the family;
- Better school for the children;
- A more secure and stable environment; and
- Positive peer influences.
Negative Impacts
- An effect on the child’s mental health;
- Leaving friends behind and changing school during a time of social development; and
- The stress of moving itself.
Alleviating the Negative Impact
There are strategies to alleviate the negative impact that relocating can have on a child. These include:
- The relocating parent engaging the child in making as many decisions as possible;
- Making a memory or scrapbook for the child;
- Throwing a goodbye and housewarming party; and
- Immediately unpacking as soon as the relocation is over to settle in a new place faster.
