Of paramount importance is whether the change would be in the child’s best interests.
It is common nowadays that a divorced parent with primary custody of a child decides to move away and wants to take the child with them. There may be many reasons for such a decision: a fresh start, a new job, extended family or a new relationship.
But it is also likely that the other parent could object to the move because it will make involvement in the child’s life difficult or impossible, at least at the level it can occur when the parents live close to one another. A move of any distance will likely interfere with the visitation schedule.
Notice of move
When the parties divorced, they may have negotiated a settlement agreement with requirements for what will happen in case of a relocation. Those conditions could include notice of move-away intention, limitations on moves, changes in custody or visitation in case of relocation or other provisions. The settlement would likely have been incorporated into the divorce decree.
If the parties did not settle, the divorce terms would have been determined by the judge in the divorce.
Maryland law provides that a court may include in a custody order a requirement that either party give written notice at least 90 days before a proposed relocation of the party or child’s permanent residence either within Maryland or to an out-of-state location. The notice requirement may be to the other parent, to the court or to both.
The court can excuse the notice requirement if it would “expose the child or either party to abuse” or for “other good cause.” There are also defenses to violation of a notice requirement related to “financial or other extenuating circumstances.”
Modification of divorce provisions
The party who wants to move may need to return to court to request modification of provisions of the divorce if the move would not comply. The left-behind party may oppose the relocation and modification of the original terms.
Either party can ask the court to modify the custody and visitation provisions of the divorce decree, whether it incorporated a settlement agreement or was crafted by a judge. A proposed relocation could be the reason for such a request. For example, the parent left behind may want to ask for primary residential custody so that the child does not have to move and instead can live with that parent. That parent may not want to strain their relationship with the child through relocation or may think it is better for the child to stay in their school and community or to remain for relationships with friends or extended family.
As an alternative, the parent left behind may not oppose the move, but want to secure a modified visitation arrangement such as having the child stay with them during summers or requiring the moving away parent to pay for air fare to facilitate long-distance visitation.
The court must first determine that there has been a material change in circumstances justifying reconsideration of custody. Maryland cases have said that a material change in circumstances means one that impacts the child’s welfare, which a relocation likely would be. Then the court can modify existing custody and care orders regarding a minor child if it would be in the child’s best interests – the overarching focus of any court decision impacting the welfare of a child.
So, a parent either proposing or opposing a move away and related changes in custody and visitation must be prepared to show the potential impact on the child’s interests. The court may consider any relevant factor, including the wishes of the child if they are mature enough.
The relocation may also justify adjustments in child support and alimony.
The attorneys at The McKeon Law Firm with offices in Gaithersburg and Bethesda represent parents in relocation and modification matters throughout the region.