Moving Out of State With Children (What You Should Know)
Sometimes moving out of state with children is the best thing for the family. It could mean a better job, being closer to family, or just escaping a toxic situation. With court-ordered child custody, it tends to get tricky. Revisiting your custody agreement with your divorce attorney can give you insight into how the judge may rule in your case.
On October 1, 2015, Nevada passed the Parental Rights Protection Act. It creates uniform rules for the entire state covering how relocation requests work.
Whether you are making the request or worried about your visitation schedule, contact a Las Vegas divorce attorney. If the judge grants the relocation, the remaining parent will only get visitations during school breaks and holidays. Even with modern communications technology, that can be difficult on your relationship with your children.
The judge must decide whether the benefits of moving outweigh the change in the visitation schedule. This is why relocation cases are some of the most subjective decisions a judge makes.
Before the 2015 law, the court used the rulings from two cases (Schwartz v. Schwartz and Potter v. Potter) to determine whether a parent may relocate with the children.
In Schwartz v. Schwartz, the court established six factors to consider in allowing a relocation. Those factors are:
- The extent to which the relocation is likely to improve the quality of life for the child and the relocating parent
- Whether the motives of the relocating parent are honorable and not designed to frustrate or defeat any visitation rights accorded to the non-relocating parent
- If the relocating parent will comply with any substitute visitation orders issued by the court if permission to relocate is granted
- Whether the motives of the non-relocating parent are honorable in resisting the petition for permission to relocate or to what extent any opposition to the petition for permission to relocate is intended to secure a financial advantage in the form of ongoing child support obligations or otherwise
- Whether there will be a realistic opportunity for the non-relocating parent to maintain a visitation schedule that will adequately foster and preserve the parental relationship between the child and the non-relocating parent if permission to relocate is granted
- Any other factor necessary to assist the court in determining whether to grant permission to relocate
According to Schwartz, if a relocating parent had court-ordered primary physical custody, that parent had to get the written consent of the non-relocating parent. The case comes into play with the non-relocating parent objects to the move. Then the parent moving out of state with children must convince the court of the above factors.
Courts use the Schwartz case when the relocating parent has court-ordered primary physical custody.
In cases where the parents have joint custody, the relocating parent would need to meet the factors from Potter v. Potter. In the court’s eyes, the parent must satisfy the following requirements.
- There exists a sensible, good-faith reason for the move, and the move is not intended to deprive the non-relocating parent of his or her parenting time
- The best interests of the child are served by allowing the relocating parent to relocate with the child
- The child and relocating parent will benefit from an actual advantage as a result of the relocation
Courts often faced confusion in exactly which cases would require the Schwartz factors and which would need the Potter factors. This left the judge with even more subjective decisions.
The new law standardized the factors over all relocation cases. It also serves to preserve the primary factor of being in the best interest of children.
When courts face relocation motions, it is challenging to implement a good balance. On the one hand, they are trying to preserve the freedom of movement of the parent. The other balances that freedom against the best interests of the child.
The new law also established the definition of relocating. In the past, courts only applied the relocation decision when the move was out of the state. What about when a parent moves within the state, but more than a couple hours away? Relocating from Las Vegas to Reno is the most common example.
The definition of relocation is “at such a distance that would substantially impair the ability of the other parent to maintain a meaningful relationship with the child.”
Another frustration with the existing rules was parents relocating without getting permission from the other parent and with impunity from the court.
The statutes regarding child abductions lack teeth in regards to parents relocating without permission. The new custody law requires a “compelling excuse” for relocating without permission.
The court will determine on a case by case basis whether a party has a compelling excuse for intentionally disregarding the rule requiring permission. Fleeing domestic violence would be a prime example of a compelling excuse.
The new law essentially levels the playing field and standardizes the relocation rules, no matter the nature of the custody order or whether there is no custody order at all.
The same rules apply whether or not a relocating parent is moving out-of-state. A distance within the state that is far enough away from the other parent to impair the relationship with the children is enough to merit a relocation request.
If you are thinking of moving out of the area with your child, it would be wise to speak with a divorce attorney specializing in child custody. They will make sure you have a “compelling excuse” before your court date.