Relocating With Children After Divorce Knows (Almost) No Boundaries

November 18, 2013

A recent decision by the Court of Appeals confirms that the trial court in a divorce does not have authority to restrict one parent from moving with the children less than 150 miles away from the other parent, so long as the children remain within the same state.

Under current law, any divorced parent who wants to move with the children out-of-state, or at least 150 miles away from the other parent within the same state, must provide at least 60 days’ written notice of the intention to the move. If the other parent timely objects, the court has the ability to prohibit the move after considering a number of factors, including whether the move is in the children’s best interests.

For in-state relocations less than 150 miles away, there is no requirement that a parent obtain approval from the other parent in advance. While the court has authority to modify a placement schedule if the move would make it impractical for the existing placement schedule to remain in effect, the court cannot require a moving parent who will stay within 150 miles from the other parent to reside in any particular area.

In Derleth v. Cordova, 2012AP2018 (Nov. 5, 2013), a three-judge panel struck down a trial court’s attempt to restrict a parent to a 45-mile geographical area when that parent expressed an intention to move 147 miles away from the other parent. The Court of Appeals ruled that because the parent intended to move less than 150 miles away, the move was not subject to the best interests of the children standard. Therefore, the trial court could not restrict the move. Instead, the trial court was actually required to take into consideration the distance between the parents when setting a placement schedule that would maximize the time the children could spend with each parent.

While this ruling does not change the law, it highlights the arbitrariness of the existing relocation scheme, which permits a parent to move 147 miles away from the other parent without restriction, but not 150 miles away. Although the law treats these two distances very differently, from a practical standpoint there is no real difference. Whether the drive is 147 miles or 150 miles long, it will be a life-altering move for the children that would seriously jeopardize any attempts for a shared placement schedule.

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For more information about "Relocating With Children After Divorce Knows (Almost) No Boundaries," contact Kathryn M. Grigg at kgrigg@axley.com or 608.283.6703.