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Relocation and Child Custody

Okay.  Let's say you're divorced and living in Kentucky.  You have joint custody of your kids.  You've remarried and your new spouse has a lucrative new job offer in Switzerland.  How exciting for you and your family!

But, wait!  Your ex-husband or ex-wife says, "No, no, no!  You can't uproot my kids and move them to Europe!  I have rights as a parent!"

What happens now?


What we're talking about here is actually a custody modification.  While this might be a once-in-a-lifetime opportunity for you and your new husband or wife, the Court's only interest is how will this impact the children from your previous marriage and your former spouse's parental rights.

A relocation more than a few miles away is going to impact how and when you get to spend time with your children. There's no way around the fact that somebody (a parent or the kids) will have to spend a fair amount of time traveling between the children's two homes.

The facts and circumstances set out below also apply to custodial parents who were never married.

As joint custodians, the parties have equal say in decisions regarding a child's health, education, religious training, medical decisions and, very importantly, where the child will live and go to school.  If a joint custodian is permitted to move from Kentucky to Europe, for instance, the other joint custodian's parental rights are severely infringed upon due to the fact that he/she no longer has a voice in major life decisions affecting the child (where he will live, where he will go to school, where and by whom he will receive medical treatment, etc.).

But the fact remains that our society today is extremely mobile.  Our economy has become more and more global which means the workforce has to be willing to pick up and move to where their careers take them.

What if your job or career requires you to move to a different state or even a different country?  What rights do you have as a parent?  What rights and options does the other parent have?  More importantly, what rights do your children have insofar as their relationships with both parents, grandparents, extended family, their friends, academic options, etc.?

In the past, the decision to relocate placed joint custody of the children in a questionable status. Parents seeking a change in custody through relocation often argued that the move would significantly benefit the child while the non-moving parents typically argued that relocation would detrimentally impact the best interests of the child by depriving him or her of the benefits of two accessible parents while also interfering with the non-moving parent's rights to parental access and input.

Currently, the trend is to allow relocation as long as it is not motivated by the desire to deprive the non-custodial parent of parental contact and provided the Court is convinced that permitting the relocation is in the "best interest" of the child or children.

Nevertheless, it remains critical for both the custodial and non-custodial parents to understand the factors that Kentucky courts consider when examining a motion to change custody based on one parent's plans to relocate.

Over time, our courts have reduced the hurdles over which a custodial parent must jump in order to relocate and retain custody.

In Wilson v. Messinger (840 S.W.2d 203 (Ky. 1992), a non-custodial father moved for modification of custody after the custodial mother proposed moving away from the community in which the father lived.

In Wilson, the Kentucky Supreme Court held that the requirement governing a change in child custody was not met by the non-custodial parent's and the child's objection to the move which were combined with assertions of a certified social worker that the child suffered from stress associated with the pending move. Quoting the Kentucky Appellate court in Wilcher v. Wilcher, Ky. App., 566 S.W.2d 173 (1978), the Wilson opinion stated that "a custodial parent cannot, in today's mobile society, be forced to remain in one location in order to retain custody."

Article 7 of Kentucky's Family Court Rules of Procedure and Practice ("FCRPP") on the subject of custody and relocation requires:

 "Before a joint custodian seeks to relocate, written notice shall be filed with the court and notice shall be served on the non-relocating joint custodian. Either party may file a motion for change of custody or time-sharing within 20 days of service of the notice if the custodians are not in agreement; or, the parties shall file an agreed order if the time sharing arrangement is modified by agreement. See Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008) and Wilson v. Messinger, 840 S.W.2d 203 (Ky.1992)."

and

"Before a sole custodian seeks to relocate, written notice shall be filed with the court and notice shall be served on the non-custodial parent. If the court ordered visitation is affected by the relocation, the non-custodial parent may file a motion contesting the change in visitation within 20 days of service of the notice."

This means you have to give the Court and the other party notice of your intention to relocate the children.  Obviously, if you are moving a very short distance and remaining in the same geographic area, this may not be a major issue.  But if you are moving more than 20 or 30 miles, the whole situation can become complicated very quickly.

At this point, the Court may have to get involved in deciding whether or not the moving parent can relocate the children, whether such a move is genuinely in the "best interest" of the children and whether the other parent's rights to routine access to the children can be changed or restricted.  Other considerations include the children's family connections in the respective communities, impact on the children's academic programs, the wishes of the child, educational and academic opportunities for the child, etc.

In Kentucky, relocation disputes are typically handled as custody modification actions.  In such cases, the Court will consider the following factors to determine what is in the "best interest of the children":

(a) The wishes of the child's parent or parents, and any de facto custodian, as to his custody;   *

(b) The wishes of the child as to his custodian;

(c) The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interests;

(d) The child's adjustment to his home, school, and community;

(e) The mental and physical health of all individuals involved;

(f) Information, records, and evidence of domestic violence as defined in KRS 403.720;

(g) The extent to which the child has been cared for, nurtured, and supported by any de facto custodian;

(h) The intent of the parent or parents in placing the child with a de facto custodian; and

(i) The circumstances under which the child was placed or allowed to remain in the custody of a de facto custodian, including whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence as defined in KRS 403.720 and whether the child was placed with a de facto custodian to allow the parent now seeking custody to seek employment, work, or attend school.

_________________

See KRS 403.270 for the full statute on determining a child's "best interest".

* A de facto custodian is any person "who has been shown by clear and convincing evidence to have been the primary caregiver for, and financial supporter of, a child who has resided with the person for a period of six (6) months or more if the child is under three (3) years of age and for a period of one (1) year or more if the child is three (3) years of age or older or has been placed by the Department for Community Based Services. Any period of time after a legal proceeding has been commenced by a parent seeking to regain custody of the child shall not be included in determining whether the child has resided with the person for the required minimum period."  See KRS 403.270 to learn more.

But what about the child’s ties to his or her current and proposed communities, to immediate and extended family members, a history of domestic violence, the parents' past pattern and practice regarding time sharing and the feasibility of restructuring parenting time in order to nurture a meaningful relationship between the child and the parent who is not relocating?

The dissenting Kentucky Supreme Court Justice's opinion in the Pennington decision referenced above urged the consideration of the following additional factors in relocation decisions:

(1) the age of the child;

(2) the purpose of the move;

(3) the distance of the move;

(4) the worthiness of the move for the child when balanced with any negative effects;

(5) the improvement of the child’s standard of living;

(6) the physical hardship of travel for the child on visitation with the noncustodial parent;

(7) the presence or absence of extended family for the child at the new location versus the existing location;

(8) the motivation of the non-custodial parent for objecting to the move (i.e., is it genuine concern for the child or simply a way of punishing the former spouse?);

(9) whether the non-custodial parent has turned down career advancement opportunities by not moving away in order to stay close to the child;

(10) the possibility and plausibility of the non-custodial parent following the child; and

(11) the number of times the custodial parent has moved.

Points to Remember:

The Court cannot prevent an adult party/parent from relocating.  He or she is free to live wherever they wish.  The Court can, however, weigh in on whether the moving party has the right to take the children from their existing home to a new location.

In Kentucky, these actions are considered modification of custody, which cannot be brought before the court in the first two years after a determination of custody except in a situation where the child is genuinely at risk or facing a true emergency if remaining in the original location.

If you have joint custody, the language in your divorce or parenting agreement should address relocation, even if this very important issue is not immediately on the horizon for either parent.

If you are the non-moving parent, the burden of proof is upon you to prove to the Court beyond question that relocation is not in your child's best interest.  This is a very, very serious situation and we strongly urge you to have an experienced Family Law attorney on your side to represent you.  The outcome is going to affect your relationship with your children for a lifetime.

Thanks to today's technology, staying close to your children despite a long-distance relocation is easier than ever.  If the move is inevitable, don't forget to maximize your contact through Facetime, Skype, text, Facebook, telephone and email.  Budget for travel to take advantage of every single opportunity to spend time with your children.  Be willing to compromise with the other parent to facilitate quality parenting time for both parties.


See also, the American Academy of Matrimonial Lawyers article entitled Model Relocation Act, which seeks to provides guidance for state legislatures addressing the difficult issue of relocating children after divorce.