What do I do If the father/mother of my child moves to another state with our child and files for custody in that state?
When parents divorce (or separate if they were never married), they must create custody arrangements in their children’s best interests (while many courts, including those in New Hampshire, are moving away from the term “custody” as being too loaded, most non-lawyers still discuss use that term to refer to parenting rights, and therefore so will we in this article). These agreements must specify how the parents will split legal and physical custody. For example, the right to make key decisions about a child’s health, education, and welfare is part of legal custody. Physical custody, on the other hand, is the right and responsibility of retaining, supervising, and caring for the child.
Physical custody
It’s typical for parents to have joint legal custody, which means they share decision-making authority over their child. However, physical custody is divided in a variety of ways, based on the facts of the case and the legislation of the state in which the case is ongoing.
Parents can, for example, agree to share joint physical custody, in which both parents spend significant or equal time with their children. In addition, they can choose to designate one parent as the primary custodial parent, which means the child will spend the majority of their time with that parent. The custodial parent has primary physical custody of the kid. In contrast, the other parent (the noncustodial parent) has the right to visitation or “parenting time” with the child in the latter case.
If the parents cannot agree on custody, a judge will have to decide for them. A custody order, or what in New Hampshire is known as a parenting plan, will be issued by a court that specifies precisely how it divides custody rights and obligations, how the parents will share caretaking.
Child Relocation Laws
When both parents are residents of the same city, court-ordered custody arrangements might last for years. What happens, though, if the custodial parent wants to relocate to another city or state? What if the noncustodial parent objects to the move since it will mean more time away from the child? In this case, the custodial parent will almost certainly have to go to court and ask a judge to allow the child to move out of state. These relocation, or “move-away cases” are some of the most challenging custody battles.
Generally, the initial court order will dictate the rules for if a parent wants to relocate. There is also a New Hampshire statute that addresses this situation. If the parent moves closer to the other parent, and doesn’t change school districts, they generally don’t have to get permission from the other parents. However, if they move farther away, or change school district, they must give notice to the other parents. If the other parents objects, they have the right to request a hearing challenging the relocation.
A parent cannot often relocate a kid to another county or state without first notifying the other parent or obtaining permission from the court that granted the original custody order. Suppose the custodial parent moves the minor kid without court approval and against the wishes of the noncustodial parent. In such a case, a judge may issue a contempt order, including fines and jail time. A judge may even alter custody arrangements to the noncustodial parent’s advantage.
Is it possible for parents to agree to the move?
Both parents can agree upon relocation. Suppose both parents agree to the child moving and can agree on a new custody arrangement that considers the new location while still giving the noncustodial parent enough time with the child. In that case, a judge will usually accept the relocation if it is in the child’s best interests. When parents agree to move their children out of state, they must sign a formal agreement (also known as a stipulation and consent agreement), which the judge may transform into a court order.
If the parents can’t agree on terms, they can also employ a co-parenting counselor or a mediator to help them reach an agreement. If mediation fails, the moving parent must go to court and file a “petition” or “motion” (legal documents) requesting that the court grant the relocation request.
When a Noncustodial Parent Moves, What Happens?
There may be circumstances that necessitate a noncustodial parent to relocate over time. Unlike custodial parent restrictions, most states do not require noncustodial parents to obtain court or other parent clearance unless they desire to relocate with their child.
But, if a noncustodial parent relocates, does he or she lose visitation rights? No, in the vast majority of cases. If the current custody and visitation arrangements can be maintained following the move, both parents must follow the orders.
On the other hand, the court does not expect a custodial parent or a kid to comply with a custody order that is no longer beneficial to the child or burdensome to the family. For example, imagine the noncustodial parent relocates 45 minutes away, and the custody arrangement enables the child to see him or her every other weekend. In that instance, the parents are likely to stick to the existing order because it is neither disturbing nor damaging to the child. However, if the move is major and the current arrangements cannot be maintained, the noncustodial parent must act before moving or risk losing time with the child.
Noncustodial parents who want to move should first discuss the move with the custodial parent and try to work out a new, mutually amicable custody and visitation arrangement. Then, you can submit your written agreement to the court for approval once you’ve reached an agreement. The judge will allow the contract as long as it is in the best interests of the child.
If you need help navigating family law issues or are facing a divorce, get in touch with our experienced child custody and relocation attorneys in New Hampshire family law team.
