Relocation: Moving with Children After Divorce

Erin E. Rathjen
Amanda B. McNelley

The Basics

Once a divorce is entered it may seem as though the decision on where to live should be made completely independent of the other parent. However, if the judgment contains custody provisions for children, then entry of a Judgment of Dissolution (or Paternity Judgment which includes custody provisions) creates certain responsibilities with regard to notice of relocation, which is defined as a change in the principal residence of a child for a period of ninety days or more. Every court order establishing or modifying custody entered in Missouri after August 28, 1998, carries the language regarding this notice obligation in the event of a relocation. Therefore, for anyone operating under the provisions of a custody order who wants to move, it is important to understand the requirements of Missouri law.

Any change of the child's principal residence, regardless of how short a distance, triggers the notice obligations under Missouri law.

Failure to meet the requirements of Missouri law may have implications in the overall custody scheme as the Court may consider the failure in a Motion to Modify custody, by ordering the immediate return of the child, or using any and all powers relating to contempt of court. Therefore, it is extremely important to know and understand what is required prior to relocating the residence of a child.

Who Should Send Notice and Who Must Receive Notice?

It is advisable to proceed with an abundance of caution in determining who is required to provide notice of a relocation. Parents who share joint physical custody may each fall under the requirements of Missouri law, as the joint custody statute requires designation of a child's residence for "mailing and educational purposes" but does not necessarily define that same residence as being the child's "principal" residence. Additionally, as a move by either parent may necessitate a change in the visitation schedule, if the parents are able to agree on those changes, they can file an affidavit with the new visitation terms without the need for filing a Motion to Modify. Therefore, it is advisable for parents functioning under a joint physical custody plan to provide notice of a proposed relocation.

How is Notice Given?

Once a parent has decided to relocate the child's residence, there are very specific requirements which must be met to comply with the statute. Notice of a relocation must be given to the other parent a minimum of 60 days prior to the move. The notice must be in writing, sent by certified mail, return receipt requested. The writing must include the following information:

1. The intended new residence, including the specific address and mailing address, if known, and if not known, the city;
2. The home telephone number of the new residence, if known;
3. The date of the intended move or proposed relocation;
4. A brief statement of the specific reasons for the proposed relocation of a child, if applicable; and
5. A proposal for a revised schedule of custody or visitation with the child, if applicable.

The party giving notice has an ongoing obligation to provide changes or additions to the information as soon as the information becomes known so if housing is secured after the letter is sent, that address and phone number must then be provided to the other party.

The difficulty for the parent seeking the relocation is the unknown of whether he or she will be allowed to move. It is difficult to buy or lease a new residence and set up utilities when it is not clear whether or not the relocation will be opposed by the other party, and if so, whether the court will ultimately allow the relocation. However, a party should not be tempted to ignore the notice requirements as the statute sets hard and fast timelines and failure to obey them can be cause for the court not only to deny the relocation, but to consider an overall change in the custody of the child.

What If I Receive Notice My Ex Is Relocating?

If notice of a relocation is received, a parent seeking to prevent relocation must file a motion with the court to prevent relocation, including an affidavit setting forth the specific basis for prohibiting a relocation, within 30 days. Failure to file the motion within the 30 days creates an absolute right for the other party to relocate. It is imperative to seek legal counsel as soon as the notice is received so the proper motion and affidavit can be filed and the objection preserved.

What Happens After the Motion Objecting to Relocation is Filed?

Once the party seeking relocation has received a motion and affidavit objecting to the relocation, he or she has 14 days in which to file a counter-affidavit setting forth the facts in support of the relocation.

In Conclusion

Overall it is important for both parties, the one seeking to relocate, and the one seeking to prevent relocation, to familiarize themselves with the guidelines of Missouri law. The statute provides the guidelines for the notice and the timelines for a proper response. Although an attorney should always be consulted prior to filing anything with the Court, it is helpful to understand the issues and possible pitfalls in this type of case and begin preparing the factors that may come into play with a relocation.

(See also: International Travel with Children)

 

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