Even though divorce means the end of one relationship, almost every divorced parent can say that they still want to have the best possible future for their children. Unfortunately, divorced parents can’t always agree on the best choices for their children. What happens when a parent thinks life for the children would be better if they moved to a new state post-divorce? Can you move your children out of the state after a divorce is final? Here are some things to know and think about.
Can I Move My Kids Out of the State After a Divorce?
Divorce with Children
When the divorcing parties have children, the divorce decree will usually include a parenting plan. The parenting plan sets forth who the children reside with, and the parenting time schedule, including holidays, among other issues, normally addressed. Even in uncontested cases, where the parties never actually appear before a judge, this parenting plan is normally included as part of the documents with the divorce decree.
The divorce decree will set forth who has legal and physical custody of the children.
Physical custody can be primarily with one parent with visits with the other parent (called “sole” or “primary” physical custody) or closer to a 50/50 shared custody arrangement (called “joint” physical custody). Sometimes one child resides with one parent and the other child with the other parent (called “split” custody).
Legal custody is who gets to make the major decisions for the children. When one parent gets to make the final major decisions when the parents can’t agree, this is called “sole” legal custody. When the parents must agree on major decisions, this is called “joint” legal custody. Large life decisions, such as what school a child attends, can sometimes cause disagreements. Even if you have sole legal custody, you may still need court permission to move the children to another state.
After a divorce decree, you aren’t stuck with the provisions in the decree. The custody and parenting time provisions can be modified after the divorce decree is entered. This is usually through a modification action. If one parent wants to move out of state post-divorce, a modification action is usually necessary.
Court Permission to Move out of State – a Modification Order
Many court orders and state laws now require that you have court permission to move your children out of state if a custody order has been previously entered. This is usually granted or denied as part of a modification order. Court permission is often required even if you have sole legal custody. How hard or how easy it may be to get the Court’s permission to move out of state depends in part on what your parenting plan currently states. It also depends on whether the other parent agrees with the move.
- Many parenting plans, and many state laws, require a parent to have a court order giving permission to move the children out of state after a divorce decree has been entered. However, if the other parent agrees to the move, it would be very unusual for the Court to not give you permission to move. When court permission is required and the parents agree, it is usually a matter of completing the necessary paperwork for the Judge to sign off on the parties’ agreement to the move. This agreement is often part of a modification action given to the Judge to review and sign. The modification order often also includes a new parenting schedule taking into consideration the greater distance between the parents.
- A written agreement between the parents is often not enough. Keep in mind that a written agreement between the parents without a court order can put the moving parent at risk. If one parent later changes their mind about the move and the moving parent failed to get a court order allowing the move, the Court could ultimately deny the move and require the children to move back to the original state. This can be a costly mistake if the move has already occurred.
- If your divorce is still in progress, you will likely need court permission to move the children out of state, whether or not the other parent agrees. Failure to get court permission can have dire consequences.
- If the current order gives the parents joint physical custody, it may be harder to convince the Court to allow the move if the other parent objects. If the children are doing well spending about equal time with both parents, it might be more difficult to prove that moving them out of state is in their best interests.
- If the current order gives one parent primary physical custody, it may be easier to convince the Court to allow the move even if the other parent objects. For example, if the children are doing well and the non-custodial parent’s time is already only once or twice per month, it may be easier to show that moving them out of state is in their best interests and won’t interfere with their relationship with the non-custodial parent.
Where Do I File the Modification Action?
Almost every state has enacted the Uniform Child Custody Jurisdiction and Enforcement Act often called the “UCCJEA.” This Act states that the state that entered the original custody order is usually the only state that gets to enter a modification order. There are exceptions to this, such as when both parents and the children have moved out of state. Thus, you usually must file the modification action for court permission to move out of state in the same case as to where the original custody order was entered.
What Do I Do if the Other Parent Objects to the Move?
When one parent objects to the move, it is often hard to reach an agreement and much more likely for the modification action to go to trial instead of the parties reaching a settlement. This is because when the parents live hours apart, the children are much more likely to spend the majority of their time with one parent and relatively little in-person time with the other. There is often less middle ground to reach an agreement than when both parents live near each other.
Although it varies from state to state and from case to case, there are a number of common factors the Court takes into consideration to decide whether to allow the move when a parent objects. These include:
- Reason for the Move. For example, if the request to move is for new employment, is there comparable employment available in the local area? If you take into consideration the greater cost of living in the new state, is the new job still truly an increase in income? Was the change in employment by choice or mandatory? The Court might be more sympathetic if the move is due to a military reassignment than if due to having met a new significant other on the internet in another state.
- It is often easier to convince the Court to grant a move that is closer than far away. If the move is only a couple of hours away, then monthly visits may still be an option. If the move is across the country or to another country, granting the request to move may result in the parent seeing the children only once or twice per year, or less.
- Current Parenting Time. If the other parent’s time, or time that they actually exercise, is only a couple of times per month, it is often much easier to convince the Court to grant the move than if the children spend significant amounts of time with both parents.
- Other Family. Who else lives in the state you are wanting to leave or wanting to move to? If the children have other siblings they are leaving behind, the Court may be more hesitant to grant the motion. On the other hand, if the grandparents and extended family in the new state will provide a support system not currently available, then Court might be more in favor of allowing the move.
- Quality of Life. If the quality of life will improve for the children if the motion is granted, the Court might be more likely to grant the request. Keep in mind that there usually must be something unique about the case in order for the Court to find that the qualify of life is better out of state than where the judge resides. Negative comments about the judge’s hometown usually aren’t going to be persuasive.
Need Legal Help?
If you (or your ex-spouse) are thinking of moving your children to another state, the best thing to do is seek legal help before making any major decision about the move. In most circumstances, you are going to need a court order granting permission even if you and the other parent are in agreement.
For one of the most cited cases in Nebraska and to get an idea of how Nebraska courts handle the moving issue, read Farnsworth v. Farnsworth, 597 N.W.2d 592, 257 Neb. 242 (1999). A link to this case is available for free to the public at: https://caselaw.findlaw.com/ne-supreme-court/1226406.html
See also our previous blog at Relocation and Nebraska Child Custody Laws.
Law Office of Julie Fowler, PC, LLO | Divorce Lawyers Omaha
Child Custody | Child Support | Divorce Lawyers Omaha
If you are looking for an attorney in a child support case or divorce in Omaha, Nebraska, or the surrounding areas (including Papillion, Bellevue, Gretna, Elkhorn, Lincoln, Nebraska City, Sarpy, Lancaster), contact our office to set up a consultation.