Parent's right to change child's residence to another state in custody cases

Parents that are going through divorce and legal separation sometimes have to make a decision to move out of state for various reasons. It may be because their family network is in another state. This decision often have a significant impact on the visitation of the other parent because it would be more difficult for the non-custodial parent to exercise his or her visitation rights in a frequent and continuing manner if the custodial parent moves to a different state hundreds or thousands of miles away from the non custodial parent.

The parent that has Custody of the child has a presumptive right to change the child's residence unless the non custodial parent can show that the move would be a detriment to the child. In cases where there has not been any final custody order, the court has to make a custody determination using "the best interest" standard. Court will look at the factors and decide what is in the best interest of the child. Custody is usually given to the parent that is more likely to allow frequent and continuing contact between the child and the other parent. On the other hand if there has been a final Custody determination, then the non-custodial parent would have to show a "significant change in circumstances" to change the custody arrangement.

The Court would then consider certain factors laid out in the case Marriage of LaMusga in deciding whether the child would suffer detriment from the relocation and whether a change of custody should be ordered. The La Musga factors which the Court will consider are

1) the children's interest in stability and continuity in the custodial arrangement;

2) the distance of the move;

3) the children's age;

4) the children's relationship with both parents;

5) the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the children's interests above their individual interests;

6) the children's wishes if they are mature enough to make that inquiry appropriate;

7) the reasons for the proposed move; and 8) the extent to which the parents currently are sharing custody.