One of the most difficult issues in divorce litigation is the request by one parent to permanently relocate the children a great distance from the other parent. This is often a gut-wrenching situation because the result could mean that the children end up a great distance from one of their parents making the preservation of a close and loving relationship a great challenge. There is a widespread belief that disputes involving this type of situation are not conducive to resolution through mediation. However, my extensive experience presiding over divorce cases for 20 years informs me that in appropriate cases, there is a reasonable potential for resolution of divorce relocation matters through mediation. This option should not be discounted.
Relocation and State Statutes
Divorce relocation disputes are governed by state divorce statutes. Although the particulars of the statutory framework may differ by state, the general analysis that each court undertakes has clear, common elements. Ordinarily, one parent, usually the parent who has the primary care and control, seeks to relocate the minor children. This is often occasioned by the parent obtaining new employment out of state, wanting to marry a new partner who lives elsewhere, or seeking to return to family. Obviously, there are various other reasons why one parent would petition for the relocation of the children, but the result is necessarily similar. The new distance between parents will disrupt the previous schedule and perhaps the relationships in fundamental ways.
The Court Analysis
The hallmark of the analysis whether to allow the relocation is the consideration of the best interests of the children. Although there are myriad factors that the court may consider in each case – and each case is unique – there are distinct lines of inquiry in every relocation case. The court examines whether the lives of the children will be enhanced. It queries the motives of the parent seeking to remove the children and the motives of the parent opposing such a move. It examines the relationship of the parents with the children and parenting contributions the parents made to the children. The court examines whether the removing parent was the primary caregiver and whether the parent opposing relocation has a close and loving relationship with the children and has regularly exercised parental responsibilities and parenting time. The court also reviews whether the parents will be able to fashion a reasonable allocation of parental responsibilities agreement if relocation is allowed. Of course, the wishes of the children are also important. No one factor is determinative, and there is no bright-line test to determine whether the relocation should be allowed or denied.
The Path to Resolving the Dispute
The dispute often appears intractable. The parent who is left behind may feel that his or her relationship with the children will be damaged beyond repair. Will the time or schedule being proposed be adequate to maintain the current relationship? He or she may feel that whatever time he or she is given to spend with the children is inadequate. In addition, he or she may feel that the removing parent is seeking relocation to deprive him or her of a relationship with the children. Similarly, the relocating parent may feel that his or her life will be irreparably damaged if he or she is unable to remove the children. The relocating parent also may contend that the other parent is opposing the move for obdurate, nefarious motives in order to hurt him or her. There is a therefore a natural reluctance to engage in mediation to resolve the dispute.
Mediation and a Mutually-Agreed Upon Resolution
I believe it is possible in many instances to address the thorny issues presented by relocation in Mediation and to achieve a mutually agreed-upon resolution. Today, parents can visit with their children through video streaming services. There are also internet custody platforms that allow the parents to exchange various information about the children. Clearly, video calls cannot replace actual physical contact between parent and child. However, in addition to in-person visits, this technology can make it easier to maintain the relationship of the contesting parent and the children. Additionally, arrangements can be made for financing the travel costs associated with visitation. For instance, when I first started hearing divorce cases 30 years ago, I had a matter where one of the parents moved overseas with the children. Interest rates were high at the time. The parties came up with the innovative solution of depositing sufficient funds in the bank so that they were able to finance their overseas trips with the interest generated by the principal sum deposited in the bank. Such a creative approach allows the contesting parent sufficient blocks of time to establish and maintain a close and loving relationship with their children. It is not uncommon for the parent who is seeking relocation to pay for the travel costs of the other parent. There also may be circumstances where the relocation parent has family or friends at the prior location and would be willing to bring the children back for visits. Parents who oppose relocation sometimes rightfully complain that they don't want to have to visit their children in stark hotel rooms. However, with some creativity and thoughtfulness, appropriate accommodations could be made for such visits.
When relocation is disallowed, the parent who is seeking to move must decide whether to stay in the area or proceed notwithstanding the court's ruling and possibly leave the children behind. This could result in a change in the children's primary caretaker and bring about disorder and confusion in the children's lives. This factor should be given careful consideration in the parents' calculus. Both parents should be loath to upend the children's lives with a change to balance in the original parenting responsibility agreement.
Divorce relocation disputes are often extremely difficult. However, as is true of other disputes, with goodwill, creativity and the best interest of the children placed paramount, it is possible to find a solution. This will inure most importantly to the benefit of the children, and ultimately, to the parents as well.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.