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Nowhere in child custody law are there more problematic issues than with cases involving relocation: the right of a parent to change the residence of a child or the right of a parent to prevent a child from being moved to a new location. In this month’s column, we discuss some of the trends in relocation law as well as offer suggestions for representing clients involved in these difficult cases. In doing so, we are not advocating a position either in favor of or against relocation in general, but rather highlighting some areas for consideration when representing clients who are either requesting or objecting to a proposed move. The relocation of a child is dealt with in a variety of ways. Some states treat the relocation as a ground for modification of custody triggering the general modification standard. Other states treat relocation as a separate matter with some states requiring that the nonmoving parent with access rights consent to the move. Two critical standards: good faith and best interest Finally, the trend in recent years has been to enact “notice” statutes. These statutes require the moving parent to give notice to the other parent and put the burden of objecting and therefore initiating a hearing on the nonmoving parent. This latter approach is the one recommended by both the American Academy of Matrimonial Lawyers (see “American Academy of Matrimonial Lawyers Proposed Model Relocation Act,” 15 J. Am. Acad. Matrim. Law. 1 (1998)), as well as the American Law Institute in its Principles of the Law of Family Dissolution: Analysis and Recommendations (2000). Regardless of the procedure used to trigger a review of a parent’s decision to move a child, the most significant issue relates to what factors the court will consider in making a decision about the move and who bears the burden of establishing those factors. Two of the most common factors the court will consider are whether the parent making the request to move is doing so in “good faith” and the overall standard of whether it is in the “best interest of the child.” Good faith is generally defined as having a legitimate reason to make a move such as the opportunity to secure employment or to be with a new spouse, as opposed to a desire to frustrate the relationship of the other parent with the child. How these factors are considered by the courts have generally resulted in four different approaches. First, some states place the burden on the moving parent to establish both that the move is made for a good reason and that it will be in the best interest of the child. In the second variation, once the moving parent establishes that the request is made in good faith, the burden shifts to the other parent to establish that it is not in the child’s best interest to move. The third approach is one that reflects a presumption in favor of the moving parent by allowing the parent to move if the relocation request is made in good faith and for a valid purpose. This standard assumes that the moving parent is the primary custodial parent and that he or she should have the right to move the child as he or she sees fit as long as there is a good reason for doing so. Finally, in the most “move friendly” approach, the nonmoving parent, in order to block the move, must establish that the relocation will endanger the child and that there are no mitigating benefits. The trend has been to permit relocation when the custodial parent requested it. This approach was adopted by the California Supreme Court in 1996 ( In re Burgess) and has subsequently been adopted by many states. However, in a recent decision ( In re LaMurga), the California Supreme Court retreated from the Burgess decision and adopted an approach that will make it more difficult for custodial parents to move with their children. These cases can be difficult to negotiate as there seems to be little room for compromise. However, skillful attorneys are sometimes able to find the means to meet some of the interests of both parents. For instance, identifying ways to continue to foster relationships from a distance, as well as removing uncertainties about the child’s life in the new location, may help to reduce the resistance to a move. If the matter cannot be resolved by agreement, the next thing the attorney in a relocation case must do is identify the standard being used in her/his jurisdiction and, more importantly, the relevant burdens imposed on the client. What follows are some practical tips for trying a relocation case. The first consideration is often the effect that the move will have on the relationship between the child and the nonmoving parent. If the attorney represents the nonmoving parent, it is important to establish that there is a strong relationship worthy of protection and that the move will endanger it. The moving parent, on the other hand, will wish to establish that the relationship can still be a good one albeit different in the frequency of contact. If the move will require a child to use the airlines to travel between the parents, the attorney should begin by ascertaining information concerning the feasibility of this method of travel. There is no doubt that more and more children are traveling as unaccompanied minors. The frequency with which this occurs is highlighted by a recent article in the New York Times travel section (June 6) that addressed the airline requirements when children from ages 5 to 14 are traveling alone. Clients will need to ascertain the special requirements pertinent to their case. If a client is resisting a proposed move and the new locale will involve airline transportation, the attorney may wish to have someone testify about the airline schedules and costs. Also relevant is the time involved in making the trip. If the trip involves more than one plane, it is important to establish whether it requires the child to take the last plane of the day or night. Some airlines will not permit an unaccompanied child to take such a flight. If the client is proposing a move that will involve air transportation, the attorney should map out the routings and emphasize the ease of travel. It is helpful to establish that there are frequent flights that will keep the child flying during the day and not involve travel on evening flights. If evening flights must be taken, then the most cautious approach, especially if the airline will not permit a child to be alone on such a flight, is to indicate that the parent seeking the move or a suitable adult will accompany the child. The cost of airline transportation also must be considered in a relocation case. If the client is resisting the move, the attorney may want to focus on the high cost of fares during those times the child needs to travel, such as those around holidays and school vacations. The attorney should rough out a schedule for such travel, either according to any proposed travel schedule put forth by the parent seeking the move or according to the child’s school calendar. It would be best to focus on the school schedule in the new locale, especially since schedules seem to differ nationally, with children in warm weather states finishing school in late May or early June. In proposing a move which involves future air transportation, gather information about fares that can be purchased well in advance for the lowest price. In counseling clients for whom airline travel is necessary, attorneys should offer some practical suggestions to ease the anxiety associated with putting children on planes. Suggest that when a parent places a child on a plane he or she should call the other parent to confirm that the child is en route. Conversely, the parent picking up the child should call the other parent when the child arrives and is with that parent. Rather than air travel, the move might require automobile, train or bus travel. A check should first be made as to whether the public carrier allows unaccompanied minors. It is more likely that there will be fewer restrictions on this, especially if the train or bus travel is relatively short in distance and perhaps involves no intervening stops. However, if such public carriers have stops before the ultimate destinations, issues related to whether the child is suitably mature to travel alone become relevant. A rather young child might have to be accompanied on a train if the train stops in several places before the child reaches the other parent’s home. Distances are not the only factor in difficulties Some moves do not involve great distances but nevertheless have an impact on the ability of the nonmoving parent to spend as much time with the child. For instance, a move may affect the ability of a parent to continue involvement in the child’s school activities because of an inability to get to the school during the day. It may also affect the ability to participate in after-school sports activity. If the attorney is representing the parent contesting the move, testimony regarding the importance of parents’ involvement in school activities may be important. Short-distance moves may also involve other weather-related conditions. If inclement weather is common in the area during the winter months, this should be taken into consideration when determining travel time. It may be helpful if the client were to make several trips between the new locations to realistically determine the travel time. In proposing a short-distance move, the attorney may wish to suggest modifications to the schedule to allow greater access for the nonmoving parent. Mary Kay Kisthardt is a professor at the University of Missouri-Kansas City School of Law. She can be reached via e-mail at [email protected]. Barbara Handschu is a solo practitioner with offices in New York City and Buffalo, N.Y. She can be reached via e-mail at [email protected].

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