John Vitela: Moving Children Out of State After Divorce

Co-parenting children after a divorce is difficult enough when both parents live within a reasonable distance from each other. If one parent decides to move out of state after a divorce, the challenges become even greater.

In most cases, parents are required under state law to get permission from a judge and/or the other parent before moving a child out of state. Even moves within the state may require permission if they will be far enough away to necessitate changes to a parenting plan previously established. To that end, unless you get permission from the other parent, you may need to file an official motion in court to approve your move.

There are several factors courts consider when deciding whether or not to approve the move. The most important is the parenting arrangement you currently have in place. The following are the common scenarios:

No existing custody order: In this situation, parents who live with their children are generally able to take children on vacations without having to get court permission. However, a parent who takes a child out of state without permission from the other parent could potentially lose his/her rights once custody arrangements are created. Exceptions exist if the parent was taking their children to protect them from an abusive situation.
Primary or sole physical custody: Parents who have primary or sole physical custody are required to demonstrate that a move is being done in “good faith,” and not with the purpose of interfering with the other parent’s visitation. Common examples include a job change, a spouse’s job change, a move to be closer to relatives or a move to take care of an ill parent. The moving parent must also prove the child will have plenty of educational and recreational opportunities in the new place, improving his or her quality of life.
Joint custody: This is the most difficult situation for obtaining approval to move children out of state. A judge will hold a hearing to determine what is in the best interests of the child, and ultimately appoint one parent as the primary custodian. The child will then live with that parent, whether it’s the parent staying or the parent leaving.

From the Highest Court of the State of Utah – The Most Significant Case for Same-Sex Couples and Child Custody

A recent ruling from the Utah State Court of Appeals has determined that an unmarried partner that is the non-biological, non-adoptive partner in a same sex marriage can be entitled to parenting rights over a child raised in the relationship under certain circumstances. This ruling has set the stage for a possible deluge of cases in the coming weeks, months and years involving same sex partners who have raised children, both adoptive and biological, from birth (or date of adoption for infants).

In a follow up decision handed down in Utah State Supreme Court, Utah County, a judge has determined that a custody case involving a same sex couple who have raised an adoptive son from infancy to the current age of 6 may proceed despite only one of the parties being listed on the adoption papers. The Judge in this case informed the parties in the custody matter before him that “You’re here at an odd moment in that the case came down from our highest court in the state, which basically changed the definition of parenthood,” before determining that the non-adoptive party had standing before the court.

As these cases show, the definition of “family” in the Beehive State is expanding. There will be many who will benefit from these rulings in the near future by having their rights expanded relating to children who have never known life without them. Stay tuned, more to come on this amazing situation.

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If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for you.