Divorce law can be a complex topic for those unfamiliar with the field. At the law firm of Fischer & Van Thiel, LLP, we have taken it upon ourselves to ensure that you are familiar with each issue that arises in a divorce.
An out-of-state move can result in a much superior situation for children in a divorce, but can also cause numerous issues should the other parent fail to give their consent for a move. The primary concern of a judge is the health and well-being of the child or children and the potential strain it would put on the relationship with the other parent.
Prior to a divorce being filed, you are free to move unless your spouse objects. They can then seek an Order preventing you from taking the children out of the state. While a divorce is in process, moving out of state with children is generally not allowed until custody and visitation schedules are established.
Post-dissolution, you should be able to move out-of-state provided you have sole custody, while any shared custody or visitation will require permission from your former spouse. If you get permission, then the custody order can simply be modified prior to your move.
If the other parent objects to the out-of-state move, then an Order is required from the court prior to the move. Your attorney can help you prepare a petition seeking permission to move and stating that the move is in the best interest of the child or children. It is best to plan far ahead of a move, as you should definitely not take the children out-of-state until all proceedings have been completed. Taking the child without properly ch
anging the custody order can result in a violation of the current order and, in the worst case scenario, parental kidnapping.
What is most important is the health and welfare of the child over the course of the entire scenario. Talk to your attorney about setting up a petition that properly details how the child can maintain a healthy relationship with the other parent. Patience and careful negotiation is key to ensuring a move out-of-state with little to no issue.
Because you and your soon-to-be ex-spouse know that the move will happen soon after the divorce is finalized, a visitation schedule for this scenario should be included in the divorce agreement. Doing so now will save you from having to return to court later to modify the custody and visitation portion of the agreement. As with any visitation agreement, you and your spouse can agree to any schedule that is in the child’s best interest. If your children are not yet school-aged, you and your spouse can work out any type of visitation schedule you wish. The biggest obstacle to a visitation agreement is how to make sure both parents are able to spend time with the child, while working around his school schedule. In most cases where parents live far enough apart that weekend or every other weekend visits are impossible, the non-custodial parent (the parent who does not have the child full time) generally has summer visitation, spring break and at least one major holiday, Thanksgiving or Christmas. However, you and your spouse may instead choose to switch off on some holidays, you may keep the holiday visitation schedule the same from year to year, or you may each take one major holiday. What you choose is entirely dependent on what works best for your family’s specific circumstances. Keep in mind that if air travel will be necessary to accommodate visitation, you must decide who will pay for the child’s airline ticket. Some parents will agree to share the cost of the child’s airline ticket, while others agree that the non-custodial parent will pay the full cost. Depending on the child’s age, you will also have to decide whether the child will fly as an unaccompanied minor or if a parent will accompany him on each leg of the trip. The most important thing to remember when dealing with cross-country visitation is to let your child know that, despite the distance, he will continue to have a strong, loving relationship with both parents.