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Proposing a Relocation

You have just decided you want to move. Perhaps your employer has asked you (or your spouse’s employer has asked him/her) to relocate, or even told that you have to relocate in order to keep your job or get a promotion. Perhaps you have recently divorced or separated and want to be closer to your family of origin. Maybe you or a spouse is in the armed forces and have been assigned a new duty station.

Studies show that moving is one of the most stressful times of our lives, right up there with the death of a family member. If you are divorced or split from the other parent of your children and the children reside primarily with you, you and your family get an extra dose of stress, and you have extra work to do. The other parent has a right to notice of your proposed relocation and an opportunity to object to the relocation of the children. You are legally required to complete this process even if you know the other parent will not object or you have reached an agreement with the other parent. This process can be complicated, and you should get advice from an attorney in your area who is experienced in child relocation cases.

In most circumstances you are required to give no less than sixty days notice of your intended move to the other parent. If you have less than sixty days notice of the move yourself, you are required to give the notice within five days of your becoming aware of it. If your move is of a significant enough distance to make your existing parenting plan impractical to follow, you must also file a proposed parenting plan to replace the existing one. If the other parent does not file a timely objection to your intended relocation, the move will be permitted. If the other parent does file an objection to the relocation, you are automatically restrained from relocating the children until a hearing can be held on the objection.

(Please note that while the notice requirements and procedures are set forth in the law, they are not so strict that your proposed move would be rejected solely because you didn’t proceed correctly, assuming that your failure to follow the rules was not deliberate. In other words, if you have already done something wrong, don’t panic, just fix it as soon as you can.)

Contested relocation cases are widely regarded by judges and attorneys as the most difficult family law cases. This is largely because in most cases, the effect on the children of a long-distance move is a negative one insofar as it necessarily reduces the child’s access to the non-relocating parent. When the non-relocating parent has a healthy and positive relationship with the children, this change would be detrimental to the child. And yet, it is a common, predictable and often unavoidable fact of life in split families that when a relationship ends, the parties to the relationship begin new lives that will often take them to new places. Conventional wisdom in child development says that the children’s relationship with you as the primary parent is the single most important emotional connection in their lives, and consequently, the stability of their relationship with you is the most important factor contributing to their overall mental and emotional stability, far more so than their physical environment. Since the court does not have the authority to prevent you from moving, its only two choices are to disrupt the relationship of the children with the other parent by permitting the move, or to disrupt the relationship of the children with you by not permitting the move. Hence, one could say that the court’s role is not to decide which option is good for the children, but rather which option will do the least damage.

The good news for you is that the Legislature has written into the law a presumption that a relocating custodial parent will be permitted to relocate the children unless the objecting parent can present evidence that overcomes that presumption. The other parent can not overcome the presumption merely by showing that the move will be detrimental to the children because that, in most cases, is a given. Rather, the objecting parent must present evidence addressing eleven statutory factors to overcome the presumption. You can read the factors in RCW 26.09.420, but in general, those factors typically favor the custodial parent.

Here’s some more good news. Neither the court nor the other parent is allowed to ask you whether, if the court declined to permit your proposed move, you would change your plans. The court must assume that you will move and must decide whether to permit the children to move with you or to change custody and have the children live with the objecting parent. Given the presumption in the law that the move will be permitted and the requirement that the court not consider whether its denial of the move will result in your deciding not to move, both the substantive and the procedural law favor you as the parent proposing to relocate.

Here’s the bad news: In practice, it’s often not that simple.

It’s not that simple because very often the other parent is understandably unhappy about the prospect of the children moving away. Particularly if he/she has a strong and healthy relationship and frequent contact with the kids, the other parent is likely to be quite upset about it.

It’s not that simple because decisions in relocation cases are made by judges, to whom the law gives broad discretion in family law cases, including relocation cases. These judges all have their own personal perspectives and approaches to the law. Perhaps more than in any other type of case, it matters what judge decides your case, and it matters in which county your case is filed. In fact, when someone asks us to evaluate a potential relocation case, the location of the case and the possible judges who could be assigned to the case are absolutely among the primary factors we consider.

Because relocation cases are highly charged and often unpredictable, the other parent is often encouraged to pursue his/her objection to the relocation. An objection will rarely be regarded as unreasonable because most judges will sympathize with the objecting parent even if they decide to permit the relocation. And an unsuccessful challenge to your proposed relocation results in an outcome no worse than an acquiescence to your proposed relocation. In other words, aside from the investment in legal fees, the other parent may very well perceive that he or she has nothing to lose by trying to stop the move and taking the case to a full trial.

You may be thinking, “This all sounds like it could take a long time, and I don’t have much time before I need to or want to move.” This is a common issue, and for that reason, the courts are required to give scheduling priority to relocation cases, and there is a provision in the law that allows you to request a temporary order permitting the move in cases where setting a trial is impractical or impossible. A temporary order permitting the move will be granted if the judge or court commissioner hearing the motion concludes, after considering all the statutory factors, that you are likely to prevail at trial. As a practical matter, a judge or commissioner’s granting of a temporary order will often result in the withdrawal of the objection, since it is unlikely that a temporary order would be undone at a trial, absent some evidence that the move had proven to be unusually detrimental to the children.

Sometimes, the objection to a relocation is made primarily to enhance the bargaining position of the objecting parent with regard to a new long-distance parenting plan. For example, you might be more inclined to agree to a longer summer visitation period with the other parent if part of that agreement is the other parent’s withdrawal of his/her objection to the relocation. Often, it is in your best interests and the children’s best interests to negotiate a more generous visitation schedule than you otherwise would (within reason, of course) if it means that you can sidestep the stress and expense of a contested relocation trial.

This process can be complicated and stressful. In relocation cases, more than in any other family law case, the decisions you make early in the process can affect the outcome of your case. Schedule a consultation with an attorney who is experienced in relocation cases and who is familiar with local customs and local judicial officers, as early in the process as possible.

Caleb Morgan