Moving or Relocating with Children After Divorce: A Collaborative Approach
If you are divorced or separated and have primary custody of the children or if both parents share custody of the children, the decision to move or relocate with your children could raise some serious complications.
Moving is widely regarded as one of the top five most stressful life events, right up there with divorce itself and the death of a loved one.
If you choose to move with your children after a divorce or separation, not only might you be facing the stress of planning your big move, but you could also be facing the legal challenges of having to formally notify your former spouse about the move, and the possibility of having to go to court to work out a new parenting plan.
First, here’s the good news. If your children will remain in the same school district, then your former partner cannot stop you from moving, nor do you need to provide formal notice.
While you must still inform the non-custodial parent that you intend to move (again, only if you are moving within the school district), you won’t need to provide formal notice that you intend to move or need to change your parenting plan.
While the non-custodial parent doesn’t have the right to stop you from moving, he or she could ask the court for a modification to the existing parenting plan, if he or she believes the move justifies a change.
Then, it’s up to the court to decide if there is sufficient reason to revisit the parenting plan. In general, the courts prefer to see stability for the children; it can be difficult to modify a parenting plan without good reasons.
Bigger issues can arise when the primary custodial parent wants to move farther. Under Washington law, the move doesn’t have to be out of state or even very distant to trigger changes to a parenting plan.
If you plan to move your children to another school district, whether that’s across town or out of state, you must deliver a Notice of Intent to Move with Children at least 60 days before you move.
Delivery of this notice sets in motion a legal process which involves a judge having to approve your new or existing parenting plan. In other words, if you want to move, your parenting plan will ultimately have to go before a judge for approval (just as it did during your divorce).
There are some important exceptions to the 60-day notification rule. If you only found out about the need to move right before the move (for instance, because of a family emergency, new job, or job relocation), you then must deliver the notice within five days of learning the news.
Other exceptions include moving to a domestic violence shelter, if the move is protected under court order, or if you believe that providing notice to your former partner will put your child at risk of harm, you may have the right to delay notice or ask the court for permission to move without providing notice.
The key takeaway is this: if you plan to move your children out of their current school district and you and your former partner do not agree, you’ll need to go to court and your parenting plan will be evaluated by the court.
A Collaborative Approach to Relocating with Children
If you find yourself in the situation of wanting to move or having to deliver a Notice of Intent to Move with Children, the best way to approach the situation may be to speak to your former partner long before the 60-day timeframe arrives.
(Even if you plan to move within the same school district, this discussion can be a good time to talk through any issues your former partner might have with the move, and potentially prevent your former partner from requesting a modification to the parenting plan.)
This gives you time to discuss the situation and see if you can find a way to co-parent through the move. That way, when you do deliver the Notice of Intent to Move with Children, you will already have worked out a new parenting plan and can submit that plan to the court using form Ex Parte Motion for Final Order Changing Parenting Plan – No Objection to Moving with Children.
Even if you and your partner can amicably work through these changes, you may still not want to work through them alone. If the parenting plan will have modifications, you and your former partner may each want to sit down with your collaborative divorce lawyers in Seattle, Washington to help you work out the specifics.
By using the collaborative process, each party has a lawyer looking out for their best interests throughout the negotiation, and ultimately, both parties can create a new parenting plan that considers all the factors that can arise when you co-parent at a distance.
In the case of a longer move both parties may need to modify the parenting plan to accommodate these changes. For example, alternating weekend visits may not make sense if you are moving out of state and holiday visits may need to be worked out anew.
If you and your former partner have a general idea about how you’d like to work out these issues, both parties can sit down with their Seattle, Washington collaborative lawyers to work out the specific language of the new parenting plan and the legal details.
If you have an amicable relationship with your former partner, this approach might be your first, and best, option.
In some cases, the parenting plan may not need any adjustments at all, like in a case where the children are moving across town, and situations where both parents agree to keep all other aspects of the parenting plan in place.
If the move is relatively close by, or you don’t want to change the parenting plan, then the parent who is relocating should still deliver a Notice of Intent to Move with Children (if the children are changing school districts).
As long as the other parent doesn’t file an objection, then the parent who is relocating can move with the children. Ultimately, it’s best practice to notify the court of the move, but that doesn’t mean you are headed to a trial or a situation where a judge will determine the outcome.
You can choose to discuss updates to your plan with your collaborative lawyers and present to an agreed parenting schedule to the court to avoid litigation.
Moving with children after divorce can be an incredibly complicated process. A collaborative divorce lawyer in Seattle, Washington can take you and your former partner through the legal steps of relocating with children to ensure that you maintain a workable parenting plan.
At Truce Law, our attorneys use a collaborative process to help you create a new parenting plan that works, which can save you thousands of dollars, and maintain a healthy co-parenting relationship.
A Collaborative Approach When Disagreements Arise
Unfortunately, not everyone has an amicable relationship with their ex-husband or ex-wife, and sometimes even an amicable situation can become stressful if one parent doesn’t want the children to move away.
Could a collaborative approach still work? The good news is that it can, especially if you haven’t reached the window of time where you must provide a Notice of Intent to Move with Children.
Let’s say that you are planning to apply to jobs out of state, or a family member has taken ill and you want to move to serve as a caretaker.
Or let’s say you’ve gotten wind that your boss might promote you to another office. Or perhaps you are getting married and your new spouse lives in another city.
By planning ahead and inviting your former partner to join you in the collaborative process, you could potentially avoid the associated costs of having to fight a partner who objects to your moving.
The alternatives aren’t pleasant, and the outcome of taking your fight to court is anything but guaranteed.
If you want to relocate with your children, and your former partner objects to the move when you provide notice, you’ll end up arguing your respective cases before a judge.
The reality is that judges themselves view these cases as incredibly difficult. Take for example the Honorable W. Dennis Duggan, who writes, “The law of child relocation in America is a mess… It has been dressed up in… word formulations that make it look like we, as family court judges, know what we are doing—we don’t.
The law pretends that we can determine with some high degree of predictive accuracy whether a move by a child with one parent away from another parent will be in a child’s best interest—we can’t.
The truth is this: there is no evidence that our decisions in these types of cases result in an outcome that is any better for the child than if the parents did rock-paper-scissors… I say let the parents make it, not the judge” (Family Court Review). The judge concludes that while parents may know what is in the best interests of their children, a judge may not.
Making decisions about whether to let your former spouse move the children to another city or state or making the decision about whether to move in the first place can be difficult enough, especially if you and your former partner disagree, but at the end of the day, parents know their children best, and it is best to make the decision outside of court, through a collaborative process. Let’s look at what can happen if you take a relocation case to court.
When Relocation Cases Go to Washington Court
According to the Journal of the American Academy of Matrimonial Lawyers, most states will determine relocation cases by deciding if the move is in the best interests of the child. Washington law dictates that the courts must approve the move unless the objecting parent can prove that the negative effects of the move outweigh the benefits.
According to Family Court Review, when a case is brought before a judge, the parent who wants to move will first need to show the ways that that the move will improve the children’s lives. If the court thinks the move likely beneficial, then the non-moving parent must show the court that the move isn’t in the children’s best interests.
If a case is brought before a judge, judges may assess the move using the D’Onofrio test. What is the D’Onofrio Test? The judge will typically ask a few questions about the move:
- Will the move improve the children’s quality of life and financial situation?
- What are the non-custodial parent’s objectives to the move and are they valid (and do they show that the move will affect the children negatively?)
- Does the new parenting plan preserve the children’s relationship with the non-custodial parent? For example, even if the children won’t be spending the same amount of time with the non-custodial parent, are there provisions for more regular FaceTime calls or something like time with the non-custodial parent during long school breaks?
- What is the underlying motive of the move? If the judge thinks it is to separate the children from the non-custodial parent, the move may not be approved by the court.
Different courts may look at different factors when determining whether a move can be approved. Family Court Review listed 36 different factors. These can be summarized as including the following concerns:
- The quality and length of the relationship the child has with each parent
- Quality and quantity of current visitation time
- Reasons for the move, and reasons for the other parent’s objection to the move
- Advantages the move provides the moving parent and disadvantages the move presents to the non-moving parent
- Could the other parent move as well?
- Are there alternatives to moving?
- Could custody be awarded to the non-custodial parent?
- Was there a prior agreement about relocations in the parenting plan?
- How will the move impact extended family?
- The child’s preferences and special needs (will the move affect the child’s physical, emotional, and social development?)
- The child’s connection to social, cultural, and religious heritage
- The presence of domestic violence, sexual abuse, or other factors that limit visitation of the non-custodial parent
Washington courts may consider these factors when determining whether to approve a move.
Why Are You Moving?
When it comes to a child relocation case, the most important factor in determining whether your case will be approved should it go before a judge hinges on the reasons why you are moving and whether these reasons will result in a better life for your children. According to Family Court Review, most relocation cases involve four situations:
- A parent is getting remarried to someone who lives in another city or state.
- A parent has gotten a better job or wants to start school in another city or state.
- A parent wants to move closer to family.
- A parent wants to move as far away from the other parent as possible because he or she doesn’t want to deal with him or her.
If a relocation case goes to court, the moving parent’s motives will be examined. Any conflict or former issues you might have had during or after your marriage could be brought forth as evidence. If the court thinks you are trying to move to alienate your child from the non-custodial parent, your move will not likely be approved.
Yet, sometimes a relocation, while initially destabilizing, might ultimately provide more stability for the children.
One example where a relocation might be seen favorably by a judge is one where you’ll be able to get a much higher earning job or begin a course of study that will ultimately provide added financial stability for your children.
Another situation where a move may be seen favorably is one where you are moving to be close to extended family to whom your child has a close relationship and who can help provide care and nurturing.
Finally, the courts may also look at whether the non-custodial parent is consistently present for parenting time and holiday visits. If the other parent doesn’t abide by the parenting plan or isn’t regularly involved in the children’s life, this could affect a judge’s assessment of a move under objection.
It is helpful to heed the language of a prominent early relocation case. In the D’Onofrio case, where a mother wanted to move to another state with her children, the court noted: “It is further clear that a noncustodial parent is perfectly free to remove himself from this jurisdiction despite the continued residency here of his children in order to seek opportunities for a better or different life style for himself.
And if he does choose to do so, the custodial parent could hardly hope to restrain him from leaving this State on the ground that his removal will either deprive the children of the paternal relationship or depreciate its quality.
The custodial parent, who bears the essential burden and responsibility for the children, is clearly entitled to the same option to seek a better life for herself and the children, particularly where the exercise of that option appears to be truly advantageous to their interests.”
If you are the custodial parent, you have the right to seek a better life for yourself and your children. While you can always take your relocation case to court, there are other ways.
The collaborative process can help you and your child’s parent understand the “best interests of the child standard,” help you get a sense of what your options might be, and work together collaboratively. If you are looking for a family lawyer or divorce lawyer to help you with your relocation case, Truce Law can help. Our attorneys use a collaborative process to help you create a parenting plan that works.