Can I Relocate My Kids Out Of State During Divorce Proceedings?

What To Do When Your Divorce Has Turned Ugly
Can I Relocate My Kids Out Of State During Divorce Proceedings?

Over the years, we’ve had numerous clients in the divorce process express a desire to relocate away from their spouse while taking one or more of the kids with them. We’re not talking about packing up and moving into an apartment within the same town or state, but major distances – often outside the US or to other states within the country. Depending upon many factors including timing, custody orders, the state of the relationship between the parents and the ages of the kids (to name a few), the act of relocation can range from no issue to going against Utah Family Law. Each situation is unique and it’s best not to rely solely on the information in this article.

Moving out of State with Child before the Divorce

After a divorce petition is filed and served, certain automatic temporary restraining orders (known as “ATRO’s”) go into effect. These prevent a parent from removing a child from the state without written consent from the other parent (or the court). So, if you’ve just been served with divorce papers, and you want to move, it’s best to place your plans on hold until you’ve consulted with an attorney.

Let’s assume that you are the Petitioner, and served your spouse with the divorce petition. If you have a hunch that your spouse is planning on taking the kids and moving, it’s best not to rely solely on these automatic orders. In this scenario, it’s important to contact an experienced family law attorney ASAP. They can assist you with the proper steps, including emergency court orders and if necessary, involvement of the authorities. During this stressful time, it’s part of their job to help manage and alleviate some of the burden that you’re undoubtedly feeling.

Child Custody and Moving Out of State

We’ll fast forward a bit: Your divorce case is five months in, and you and your spouse have each retained an attorney.

You’ve been offered a job out of state, and you feel that your child would benefit from moving out of Utah with you. What now? The answer largely depends on whether or not you have sole custody of the child, and whether it is in their best interest to relocate out of state with you.

If you’ve been granted sole custody: The parent that has sole custody of a child has the right to change the residence of the child, but the court has the power to prevent a move if it sees necessary. Although vague, the “necessary” part of the court’s view will be tied to the relocation not fitting within the “best interests of the child” realm. A potential negative scenario: Your child is a sophomore in high school and received a “student athlete” nomination.

They’re heavily involved with school clubs, extracurricular activities, and their social circle is deeply rooted in your current town. The court may see the idea of uprooting them and moving to another state as not being in their best interests, especially if the child is against it in the first place. Our guess, solely based on that example, is that you’d agree.

Custody cases involving a potential move can be very difficult and emotionally draining for all involved. Courts may use different standards in deciding whether or not you can move with the children, and it will depend upon specific circumstances of your case: Are you making your request as part of an initial custody determination (there are no prior orders regarding custody in effect)? Is the request to move going to require a modification to a temporary custody order? Or, is the request going to require a modification of a final custody order? The specifics of your situation will result in the court looking at different factors when arriving at a decision, but it will always focus on what is best for the children.

Relocating with your children is a big decision, especially if you and your child’s other parent are no longer together. You might wish to move because of a job prospect, an educational opportunity, lower cost of living, to be closer to family, or simple for a change of scenery. Whatever the reason, your ability to move out of Utah with your child depends largely on your current parenting situation.

Before you move your kids out of state, make sure you don’t need their other parent’s legal consent. Learn more about relocation and child custody laws to ensure you make the right decision for your family.

Do Both Parents Have Legal Custody?

As things stand, do you and the child’s other parent currently have a legal custody order issued by the court? Parents without legal custody orders are free to do what they want, essentially, and they can relocate with their children without legal consequences.

However, no parent is allowed to keep their child’s other parent from seeing them without an order from the court. If the relocating spouse refuses to let the other parent see the children, it could create a legal issue.

Can I Relocate With My Child If I Only Have Visitation Rights?

When it comes to relocating with your child, there are a few rules you need to follow if you already have an existing custody order. The relocating parent must be the child’s custodial parent. Parents with limited visitation rights will not be able to take their child to live with them in another state unless they first have their custody agreement modified by the court.

If the custodial parent wishes to relocate, he or she must still be able to honor the existing parenting plan. In other words, if the arrangement stipulates that the child sees their other parent every other weekend, those visits still have to be honored. If you wish to change visitation or your existing custody arrangement before the move, you must seek a modification through the court.

How Do I Obtain A Court Order To Relocate?

In Utah, the relocating parent must provide the other parent with written notice that he or she will be moving out of state with the child at least 60 days prior to the move. Once the other party has been notified of your intention to relocate with your child, they will have 30 days to file a formal objection through the court.

What If The Other Parent Objects To My Move?

If the other parent objects formally, a family law judge will hear the case in court and decide from there. Also, if other individuals have a stake in the child’s custody (such as grandparents with visitation rights), they may object to the relocation as well.

If your case does go to court, the judge will review the issue in the same way they would any other child custody issue. Both parties will be able to present their case, the reasons for the move, the reasons the other parent objects to the move, and so on. The judge will ultimately make a decision based on the best interest of the child.

What If My Relocation Is Local?

Localized moves, on the other hand, are much more easily obtained. If the custodial parent wishes to relocate with the child within their same school district, there is no need to notify the court of the impending change.

Can I Stop My Ex From Moving Out Of State With My Child?

After a contested child custody case, divorced parents may still have problems and conflicts. This could involve making visitation more difficult, including moving further away. In some cases, one parent may plan to move out of state and take the children with them. This can make it much more difficult and complicated for the non-custodial parent to see and spend time with their kids.

Taking the children out of state could involve a petition to the court to change the parenting plan to allow the custodial parent to move away with the kids. However, some parents try and move out of state without telling the other parent, in violation of the custody agreement and the law.

Is There A Child Custody Order Or Child Custody Plan In Place?

It can be more difficult for a parent to stop an ex from leaving the state if there is no child custody plan in place.

The parents may not have a child custody plan because they are still awaiting a final divorce and custody judgment.

Parents may also be avoiding a formal divorce because of financial or other reasons. However, even without a formal order, a parent may be required to notify the other parent of the intent to move.

When the parents have a child custody plan or court order, the terms of the order generally control when a parent can take a child out of state and under what circumstances. This may depend on which parent has physical custody, whether the parents are sharing custody, and the visitation schedule of the non-custodial parent.

If you have any questions about the process or permission for the custodial parent to move out of state with the child, review your parenting plans and court orders. These should provide for what happens if one parent wants to move out of state.

Does Utah Law Apply When The Child Is Taken Out Of State?

A parent cannot generally avoid state laws just by going across state lines. If the child has lived in Utah for the prior 6 months, Utah is considered the child’s home state. Utah child custody orders will still generally apply even if the parent tries to leave the state.

Petition To Stop The Move

If the parenting plan or custody orders prevent one parent from moving without getting permission to leave, leaving the state may be a violation of the court’s order. Violating the child custody order or parenting plan could be contempt of court and could even result in an arrest or criminal penalties against the parent who violates the court order.

The parent who wants to prevent the move may be able to file a petition to prevent the relocation of the child with the family law court. This may also contain a request for injunctive relief, to prevent the parent from moving until the court has ruled on the issue. Depending on the situation, the parent may want to file an emergency order if they are faced with a surprise or sudden notice of the intent to move.

One of the most difficult hurdles during a divorce proceeding every parent will have to deal with is the one pertaining to their children. Unfortunately, while both parents usually agree the well-being and safety is of utmost importance, oftentimes, they disagree on what is required to keep their children safe.

In some cases, one parent may be faced with the decision to relocate, often out of state, for job needs, to be closer to immediate family, or for other reasons. However, before you make that decision on your own, it is important to understand your rights, as well as your obligations under Utah’s laws.

Relocating a Child During Divorce Proceedings

If you have been awarded sole legal custody during a divorce proceeding, you can move with your child to any location deemed safe for the child. However, keeping in mind that the other parent may opt to request the court to intervene, particularly if the custody order under which you have custody is a temporary one.

In this case, you should seek guidance from a qualified family lawyer who can help you determine whether your order is temporary or permanent. This could save you legal problems because while you have the right to move out of state, the other parent could dispute that right.

Divorce Petitions and Relocation of Children

Some parents want to move out of state immediately after being served a divorce petition. This is a bad idea – Chances are, your petition also included a restraining order. These orders are called “automatic temporary restraining orders” and they are in immediate effect and prohibit the removal of a child from the state without written consent from the other parent.

If you have physical custody of your child, and the child’s other parent has visitation rights and you have a concern they may consider moving the child to another state, you should speak with your attorney immediately.

The Court and Relocation Considerations

In general, a parent who has sole legal custody of a child has the right to move that child to any location they prefer without consulting with the court or the other parent. However, this does not stop the other parent from requesting a relocation hearing because they do not feel the relocation is in the child’s best interest. Some issues the court will take into consideration during these types of hearings include:
• How far away you intend to move with the child
• Whether there is potential harm for the child if you were to move
• What the relationship is between the child and each parent
• What the child’s specific needs are including educational and emotional needs
• The ability to maintain family relationships after relocation
• Why the parent is opting for the move (personal relationship, job opportunity, family)
• The child’s overall safety and stability after the move

Understanding Custody Agreements

Parents who are considering relocation must have a firm understanding of final custody agreements before making such a move. Even where a parent has sole custody, and therefore the legal right to relocate the child, the court may ask the reasons for the relocation. In some cases, if the court feels the relocation is not in the best interest of the child, they may prevent such a relocation from occurring.

Custody, Visitation and Traveling Out of State

Parents who share custody, or have visitation agreements also need to understand that either parent who has physical custody of a child at any time is free to cross state lines with the child and go anywhere they choose. The only limitations to this is if a parent has expressed concern about the safety of their child and the court deems that out of state travel would be detrimental to the child. If you believe your child could potentially be in danger traveling out of state, you may be able to seek a modification of your existing agreements pertaining to visitations. Seek guidance from your attorney regarding this issue as soon as you believe it may be a problem.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
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