How does child custody work if one parent needs or wants to move out of state?

How does child custody work if one parent needs or wants to move out of the current state? Is it better to let the court know up front of the possibility, or wait until custody is decided?

This is one of the best family law questions I’ve ever seen asked. Thank you for asking this very important, very tricky question. I’ll try to untangle it for you.

If the children have lived in the state where they are now for a long time, have a network of family and/or friends there, feel a strong connection to where they live, are doing well there, and would likely find a move to be anything but an improvement in their lives (especially after their parents divorce), then the only way your moving could overcome all that is if you can prove that the children will suffer even worse if they don’t live with you, regardless of where that is. That’s a very high bar to meet.

So if you merely want to move but don’t need to move out of state, moving puts you at risk of losing whatever custodial arrangement you have.

Bottom line: generally speaking, if you don’t need to move, don’t move.

Next question: if you must move, should you notify the court up front, or wait to see what the custody award is?

Obviously, if you and your spouse currently exercise joint physical custody and if neither of you is claiming to be the better parent, then the parent who isn’t moving has the advantage, sort of a rebuttable presumption that the kids should stay put. (see above as to why).

But what if you and your spouse are fighting over sole custody of the kids, and you have to move? I’ve seen this played both ways, meaning that I’ve seen a parent wait for the final custody award, win (or lose) sole custody of the kids, and then announce, “now I’m moving”, and I’ve seen a parent disclose the impending move before the final custody decision is reached.

Frankly, the right thing to do is disclose as soon as you become aware of it, but I’d be lying if I told you that the courts reward and/or don’t punish doing the right thing. If you wait to move until after you are awarded sole custody, you might just get to keep the kids with you when you move; the thought being that because you were deemed the better of the two parents when it comes to physical custody the kids should remain with you when you move. But if it appears that you are moving to distance and alienate the kids from their other parent, the court can and likely will ding you for that. The law does not look favorably upon parents who move to deprive them of contact with the other parent.

Utah Family Law, LC | | 801-466-9277

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