A non-custodial parent moving out of state is generally not a big issue, as long as the non-custodial parent is not bringing the child with him. Generally, a non-custodial parent only has visitation rights which allows him to visit the child (which includes overnight visits). It is the non-custodial parent’s prerogative whether he wants to utilize his visitation rights or not. The only consequence of a non-custodial parent not utilizing his visitation rights is that the court may lower the parenting time for visitation because it is not being utilized. When a non-custodial parent moves out of state, his visitation rights will become limited due to the distance, and there may be a need to petition the court to modify the visitation schedule.
If the non-custodial parent is moving out of state and would like to bring the child with him, he must first petition the court for custody, and thereafter, request for approval to move. In petitioning the court for modification of the custody order to transfer custody to the non-custodial parent, the non-custodial parent must prove that he is the parent better fit to take care of the child. Once the court grants custody to the non-custodial parent, then the new custodial parent can request for approval to move. The court will look into a custodial parent’s good faith reason to move, such as:
- the parent’s reasons for the move
- the non-moving parent’s reasons for opposing the relocation
- the child’s relationship with each parent
- the move’s impact on the quality and quantity of the child’s future contact with the non-custodial parent
- how the move will enhance the child’s life educationally, emotionally and financially; and
- the feasibility of visitation arrangements with the non-custodial parent following the move
For example, Father and Mother were married with one child, Child. They are both based in New York. Father and Mother divorced, and the stipulation that was made part of the divorce decree gave Mother custody of Child, with Mother having Child majority of the time during weekdays and Father having Child during weekends. Father, the noncustodial parent, received a lucrative job offer based out of state and has decided to accept it. Does Father need a court order to move out of state? No, he does not need a court order to move if he is not bringing Child with him. Can Mother go to court claiming that Father is violating the custody order by not having their child, Child, during weekends, now that Father is out of state? No, Mother cannot claim Father has violated the custody order by not utilizing his visitation rights. Father’s non-utilization of visitation rights will only make the court lessen his visitation time.
Suppose Father, as the non-custodial parent, would like to bring Child with him out of state, can he do that? First, Father has to petition the court for custody of Child. Only when the court grants Father’s petition for custody over Child can Father request for approval to move out of state with Child. Suppose the court grants Father’s petition for custody, will the court grant Father’s request to move out of state? In granting any petition, the court will determine whether it is in the best interests of the child. In Father’s case, the court will look into his reason for the move, Child’s relationship with each parent, and the impact of the move on Child’s future contact with her mom, Mother, to name a few considerations. Only when the court decides it is for the best interests of Child to move will the court grant Father’s request.
Can Father move out of state alone and then file a petition out of state for custody of Child? No, under the Uniform Child Custody Jurisdiction and Enforcement Act, the other state’s courts will not have jurisdiction since the child has not been a resident of the other state for the past six months nor is she currently present out of state for courts to assume temporary emergency jurisdiction. Father’s remedy is to file for custody modification with the New York courts, even if he is out of state.
Family law issues, especially child custody, can be adversarial, contentious, and emotional. In these cases, you need a skilled child custody lawyer, like us, beside you who can advocate for your rights and present a good case in court that will grant you custody. Should you have issues in family or child custody and need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at firstname.lastname@example.org.