When One Parent Wishes to Move the Children to Another State

Cortez & Hoskovec

New Mexico Child Custody Laws: Moving Out-of-State

There was a time in America when it was common for three or four generations of a family to live on the same parcel of land, or even in the same house. These days you are lucky to find three generations living in the same state. We live in a mobile culture such that we are not particularly tied to a piece of land, and that makes it fairly easy for us to move from one state to another.

Whether it is required for employment, due to a new interpersonal relationship, family issues, or simply desiring a change of scenery, relocating to another state is not the monumental task that it has been in the past, unless of course you have an ongoing custody case and you wish to relocate to another state with minor children. Under those circumstances, the only way you can legally relocate with minor children is with the other parent’s consent or with the Court’s permission to do so, against the other parent’s wishes. We call this a “relocation case” and relocation cases are becoming more and more common.

If both parents have historically lived locally, and now one needs to move away, the timesharing schedule will have to change. And because there are compulsory attendance laws requiring children to attend some form of school for 180 days per year, the children will have to be with one parent for a majority of the year while they attend school, which is traditionally nine months out of each year.

It is easy to see how this situation can quickly escalate when both parents believe that the children should be with them. There used to be a presumption that children are best served by staying where they are, due to the general elements of stability, familiarity, and predictability. They have their home, friends, school, family, activities etc., where they are. Under this scenario, the parent proposing to relocate with the children has the burden of overcoming the presumption that the children are best served by staying put.

Perhaps due to the current state of child developmental psychology, for better or worse, there has been a change to the Court’s approach to relocation cases such that the parent wishing to relocate no longer bears the burden of overcoming a presumption that the children should stay. Instead, the Court considers the risks to the children associated with relocation and often orders the parents and children to participate in a Relocation Risk Assessment. This is a clinical assessment typically conducted by a master’s level counselor (MA, LED, LMSW) who will assess the proposed relocation in the context of specifically defined risk factors. These factors include matters of: adjustment, economic resources, educational resources, medical resources, family/support systems, etc.

However, assuming that these factors are fairly even in both cities, the primary risk to the children involves what becomes of the children’s relationship with the absent parent. Studies support the reality that children are best served when they are able to maintain healthy and robust relationships with both of their parents. If the children relocate with the moving parent, what will become of their relationship with the parent who is left behind? Or, if the children stay, what will become of the relationship between the children and the parent who moves away?

When it is inevitable that the parents are going to live in different states, the question in the assessment becomes, “Which parent is most likely to promote, encourage, and cultivate a healthy and robust relationship between the children and the other parent?” You want to be viewed as the parent that is most supportive of the children’s relationship with the other parent, as this will result in an assessment reflecting a greater risk to the children if they stay with the other parent rather than staying with you.

This cannot be accomplished when your idea of participating in the assessment is spending the entire time complaining about the other parent. There are also many other pitfalls associated with Relocation Risk Assessments that you need to be aware of before participating in one.

Redefine “Winning”

Unlike so many other disputes that arise in custody cases, which must be resolved through litigation, relocation cases do seem to have a clear winner and loser. Unless the moving parent ultimately decides not to relocate, the parent that prevails will have the children for nine months of the year to accommodate school.

This means that the other parent is very likely to be awarded virtually all summer every summer, Spring Break every year, Thanksgiving Break in alternating years, and half of Christmas Break every year, as well as several other opportunities for timesharing during the year, depending on the distance.

So the “winning” parent often feels less than victorious when they end up with very little meaningful recreational time with the children during the year. The fact is, when you have successfully capitalized on nine out of twelve months, the “off” time is all that’s left for the other, “loser” parent.

Relocation cases are about much more than simply whether or not the other parent gets their way. The prospect of children moving away from one of their parents is both alarming and infuriating, and faced with this issue, most parents are at a high risk of reacting out of emotion rather than responding thoughtfully. You need counsel with the knowledge and experience to help you clearly understand the issues and risks, define your objectives, and develop a plan to achieve them.

Speak to a Family Law Attorney Today

At Sandia Family Law., we have litigated many relocation cases through the years, advocating for all sides of the issue. We are here to put our knowledge and experience to work for you and fight to achieve the best possible outcome in your case. Let us take a look at your case today.

Call (505) 544-5126 to set up your consultation with our team of divorce lawyers.

Related Posts
  • Property Division in a Divorce: What's Fair and Equitable? Read More
  • When All We Can Do Still Isn’t Enough Read More
  • Legal Separation vs. Divorce: Pros & Cons Read More