Relocation with a minor child is a heart-breaker. Just when the newly divorced parents have gotten used to the parenting schedule, the back-and-forth, and the reality of not seeing their child every day, somebody gets transferred. Or somebody has a new love interest. Or somebody wants to fulfill their life-long dream of living in sunny California.
Can I Move with My Child? Can She Move My Child Away?
There is an entire body of law surrounding when a parent can move with a child. If the new place is merely across the street, all that has to happen is to file a notice of new address with the court and the child support agency. If the new place is fairly close, say around 50 miles, then the moving person will at least initially be stuck with most of the drive back and forth. Dayton to Columbus does not change the every other weekend arrangement. Dayton to L.A., however, changes everything for everyone.
Mothers often ask me if they can move to wherever, for whatever reason, usually far away, often for a new military husband. I tell them that they can move anywhere they can afford to live because this is America and anybody can live anywhere. If they want to take the child with them, however, it’s another story.
If mom is the custodial parent, the mere act of moving away does not constitute a “change of circumstances.” In order to stop litigation and provide stability to children, Ohio law requires the parent requesting a custody change to prove that a change of circumstances has occurred. The change must be substantial and unknown at the time of the last order. A change of circumstance must first be proven before the court will start to think about what is in the child’s best interest. If the other parent, usually the dad, decides to contest the move, a custody battle usually follows.
Judges call custody decisions agonizing. Parents call custody battles hell. The recent case of In re M.P., 2013-Ohio-3939, illustrates this point perfectly. Pam and Rodney were divorced with a son (“Johnny”) and Pam had custody. A year later, Pam and Rodney had a full trial on whether Pam’s plan to move constituted a change of circumstances. Nothing changed because Pam decided not to move, after all, with her new boyfriend to Florida, 1200 miles away. The following year she moved to Florida anyway, took Johnny with her and enrolled him in year round school. Rodney filed for custody.
After a second full custody trial, the Court eventually required Johnny to return home and granted custody to Rodney. The Court held that an out of state move, along with other circumstances, could constitute a substantial change of circumstances. The other circumstances in this case included the fact that both sets of grandparents lived near Rodney in Ohio; that Johnny had friends in Ohio he had known since his birth; that Pam’s new boyfriend was volatile and altercations had taken place; and the distance and year round school all but eliminated regular parenting time between Johnny and Rodney.
It is hard to imagine a situation where an out of state move does not affect other circumstances that the non-moving parent can develop to keep the child at home. In Brown v. Brown, 2013-Ohio-3456, Holli and Troy divorced and Holli took custody of their three boys. A year later, she wanted to move from Champaign County, Ohio to South Carolina for a new job and to be closer to her parents. A custody battle followed.
All three boys had close bonds with their immediate and extended family. Interestingly, the Court found that the fact that Holli had been the primary caregiver was not the most important factor to consider. In the previous case, In Re M.P., the Court noted that Pam had been Johnny’s primary caregiver, but that could only be considered in the initial custody determination (who gets custody in the divorce), and not in a later request to change of custody. The Brown court found that it was impossible to imagine how the children could be better adjusted to their friends and family in Champaign County and the only advantage to a move to South Carolina was a longer sports season because of the milder climate. The Court kept the boys in Ohio and awarded custody to their father.
Take Away from All This
What is the take-away from these recent cases? I was happy to learn that there is an expiration date to the advantage to being the primary caregiver. Fathers are frequently beat over the head with the argument that the mother has provided most of the care, so therefore she is the best parent for custody. While this still has heavy weight during a divorce custody battle, it cannot be considered in a change of custody after divorce.
Both of these cases had good father facts. All of the children were older, both fathers were hands-on, and the all the children were thriving in Ohio.
The longer a child lives in Ohio, the more likely it is that he will stay. The built-in advantage to the primary caretaker dissipates with time. It is costly and agonizing to contest a relocation, but relocation out of state has more far-reaching (pun intended) impact upon the parent-child relationship than who has custody in the same town.