Moving Out of State With Children (What You Should Know)

Posted: 12 August, 2022

Sometimes moving out of state is needed. Maybe a better job, wanting to be closer to family, or maybe your new spouse is being transferred.  When this situation arises, and you share custody of a child, you will need to get permission before relocating with the child.  This article will explain what you need to consider.

This article is not about requests to leave without the child.  You don’t need permission to leave if you are not taking the child with you.  You might want to modify a visitation order, but you don’t need permission to give your visitation.

The article is also not about leaving the state with the child temporarily for vacation purposes.   Many parents believe they cannot take the child to Disneyland or to Ohio to visit their grandparents without court permission.   Taking the child out of state on vacations is not kidnapping and does not require permission from the court.  You should let the other parent know where you are going and provide them emergency information.  But you are not violating any laws.  If you are exercising your visitation or holiday schedule the other parent cannot unreasonably refuse your request to leave the state.

Requesting Permission to Relocate

The first step in a permanent relocation is to request permission.  There are two ways to receive permission. You can ask the other parent if they will agree.  If they do, you can file an agreement to allow you to move out of state.   If they do not agree you will need to file a request (called a motion) and have a judge decide if you can relocate out of state with the child.

Relocation requests are challenging decisions for a judge.  The judge must decide whether the benefits of moving outweigh the change in the visitation schedule.  In other words, are the benefits of the move so great they outweigh the fact the child will likely not see the other parent as often. Therefore, relocation cases are one of the most subjective decisions a judge will ever make.

Below we discuss relocation scenarios between parents fictional Michelle and Tommy and their 10-year-old child, Avery.  This will help you understand the process and law of relocating to another state with your child.

In these scenarios we are going to assume there has already been a divorce or custody case filed and finalized.  We are assuming a custody and visitation order has already been established and now you are requesting a change in this order.   If a case has not been completed, then a case will need to be opened and in the initial custody request a relocation request must be made.

Moving Out of State with Children if I have Joint Custody?

Michelle and Tommy have one child, Avery who is ten-years old. Michelle, Tommy, and Avery have lived in Las Vegas for over ten years. Last year, Michelle and Tommy separated. Michelle and Tommy have joint physical custody of Avery. Based on their custody schedule, Avery lives with Michelle from Monday morning until Thursday afternoon. Avery then lives with Tommy from Thursday afternoon until Monday Morning.

Last week, Michelle’s boss offered her a job promotion, requiring her to relocate to Salt Lake City, Utah.   Michelle is very enthusiastic about this opportunity and feels it will benefit her and Avery. However, Michelle is unsure if she is legally able to relocate with Avery.

According to Nevada law, Michelle must first attempt to get Tommy’s written consent to relocate to Utah with Avery. If Tommy does not give Michelle written consent to relocate with Avery, then Michelle must file a request with the court (legally referred to as a petition) requesting primary custody for the purpose of relocating.

When petitioning the court for relocation, Michelle must prove the following:

(a) A good faith reason for relocation and that relocation is not  intended to deprive the non-relocating parent (Tommy) of parenting time;

(b) It is the child’s (Avery’s) best interest to relocate; and

(c) The child (Avery)  and the relocating parent (Michelle) will actually  benefit from the relocation.

If Michelle can show (a),(b)and (c), then the court will consider the following:

(d) The extent in  which the relocation is likely to improve the quality of  life for the child (Avery) and the relocating parent (Michelle);

(e) Whether the motives of the relocating parent (Michelle) are fair and are not meant of frustrate the non-relocating parent’s  (Tommy’s) visitation rights;

(f)  Whether the relocating parent (Michelle) will comply with any alternative visitation orders issued by the court if permission to  relocate is granted;

(g) Whether the motives of the non-relocating (Tommy) parent are fair  in fighting the petition for permission to relocate or  whether the opposition to the petition

for permission to relocate is financially motivated for child support purposes;

(h) Whether there will be a realistic opportunity for the non-relocating parent (Tommy) to maintain a visitation schedule that will encourage the parental

relationship between the child (Avery) and the non-relocating parent (Tommy) if permission to relocate is  granted; and

(i)  Any other factor necessary to assist the court in determining   whether to grant permission to relocate.

As Michelle is the parent seeking relocation, she has the responsibility of showing that relocation is in Avery’s best interest.

Moving Out of State with Children if I have Primary Custody?

If Michelle has primary physical custody of Avery and Tommy has visitation, the same process is required.  Michelle must try and get Tommy’s written permission to relocate with Avery. If Tommy refuses to give Michelle written permission to relocate, then Michelle would petition the court for relocation by proving the (a)-(i) factors above.  The difference between these two scenarios is the visitation schedule.

If Michelle has primary physical custody, then she already has the majority of time with the child.   The courts will take this fact into consideration when deciding Michelle’s request.  Having primary physical custody is no guarantee Michelle will be allowed to relocate. But this is a strong fact in her favor.

Can A I Take My Child Out of State Without the Other Parent’s Consent?

While it is “physically” possible to relocate without the other’s parent’s permission, even though not “legally” proper, the relocating parent must be aware of some challenges with this decision.  Leaving the state “permanently” without permission is not kidnapping but it is a violation of your court order.

For example, what could happen if Michelle left for Utah without asking Tommy or the court for permission?  Tommy could file a motion to request Michelle to return the child.   Michelle can stay in Utah, but the child must be returned.

If Michelle ignores this order, then she is in contempt.  Then she could be charged with a form of kidnapping.   If a parent fails to do this, they are in violation of Nevada law and may be charged with felony charges for unlawfully relocating with the child.  Even if Michelle returns the child and responds to Tommy’s request with her own request to relocate, she has seriously harmed her case.   The judge will not be pleased that she made the unilateral decision to relocate to Utah without permission.

In this case, it is always best to ask for permission, by the Court and non-relocating parent, rather than seeking forgiveness after the fact.

If you considering relocating with your child, contact our divorce and custody attorneys at (702) 914-0400.