Relocating with Children Over the Other Parent’s Objection

In divorces and other child custody disputes, one parent may want to relocate to another county or state. If the other parent objects, the court will have to decide whether to allow the move. Oregon and Washington use different standards to decide these questions.

In Washington, a law enacted in 2000 requires the judge to consider both the best interests of the child and the interests of the parent who wants to move. The law is written to favor allowing relocation; the judge must find that the relocation will be more detrimental than beneficial to block the move. In making the decision, the judge is required to consider eleven equally weighted factors, ranging from the child’s relationship with the parents to available resources for the parent and child in the two communities to the financial impacts of allowing or denying the move.

The effect of the Washington law is shown in a recent case. The parents were both doctors living in Yakima, but the mother had left practice when the first child was two years old and served as a full time homemaker for 14 years. During that time, the family moved several times to follow the father’s employment opportunities. When the marriage ended, the mother was ineligible for a Washington medical license because of inactivity. A one-year fellowship would be required to reestablish her eligibility, of which only one or two per year were available in Washington (except to residents at the University of Washington). When the mother was offered a qualifying fellowship from UCLA, she asked the court to allow a relocation to Los Angeles.

Although two court-appointed experts testified that the move would be bad for the children, the trial court approved it. The Court of Appeals affirmed after reviewing the trial court’s findings that the benefits of the move to the mother and children outweighed the detriment to the children. The appellate court accepted the trial court’s findings regarding all eleven relocation factors, only some of which were seriously contested by the father. His primary argument was for application of the legal standard from before the 2000 law in light of a Washington Supreme Court opinion appealing from a trial before that law went into effect.

The significant findings in favor of the move were that the mother had the stronger relationship with the children; that disrupting contact between the children and the mother would be more damaging than disrupting contact between the children and the father; that a move would be consistent with the family’s history of numerous relocations and would provide the mother with financial stability while resuming her career; and that the children’s personalities were sufficiently developed and resilient to adjust to a move. All of these were contested, but the Court of Appeals found the trial court’s findings were reasonable based on the evidence presented at trial, including evidence contradicting the two experts’ opinions.

The Court of Appeals also approved the trial court’s decision not to take into account the cultural background of the father (a Korean immigrant) because it found the cultural background not helpful to its decision. (Washington law allows, but does not require, consideration of cultural factors in child custody and visitation decisions.)

Oregon considers the relocation question on the basis of the best interest of the child, and there is no preference for allowing relocation. Furthermore, if the request for the move comes up in the context of a modification of the parenting plan, instead of at the time the plan is initially determined, the parent seeking the move will need to prove an unanticipated change in circumstances. Recent published opinions show that the courts look closely at the facts of each case and have been willing to distinguish the interests of the parent from the interests of the child. This makes the question of relation a difficult one to predict in Oregon, but the recent Washington case probably would have been decided differently in light of the sole focus on the children’s best interest.

A parent who wants to relocate may be best served by trying to negotiate an agreement with the other parent. If an agreement cannot be reached, an Oregon based parent probably should collect as much evidence as possible that the move would be to the child’s benefit; conversely, in Washington, analysis of both the parent’s and children’s interests should be investigated. A consultation with a lawyer probably would be helpful in analyzing whether a move would be approved by a judge.

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