Moving With a Child After Divorce: Sometimes Allowed and Sometimes Not

It sometimes happens that after a divorce, one of the spouses wants to move out of the area. In most cases, when there are children involved and the move is more than a distance stated in the judgment (more than 60 miles in Oregon) or out of state, this will require agreement of the other parent or a court order. Two cases from Oregon, Finney-Chokey and Chokey, 280 Or App 347 (2016), <www.publications.ojd.state.or.us/docs/A157466.pdf>, and Federov and Federov, 228 Or App 50, 206 P3d 124, rev den, 347 Or 42 (2009), <http://www.publications.ojd.state.or.us/docs/A135107.htm>, illustrate some of the facts the courts may consider important in deciding whether or not to approve a proposed very long-distance relocation.

In both cases, the mother wanted to return to her home country. Ms. Finney-Chokey was English and Ms. Federov was Australian. The fathers were U.S. citizens. (Dr. Federov was born in Russia). Each marriage produced one child, and the marriages ended shortly after the children were born. The mothers were the primary caregivers in both marriages. There was no significant evidence of domestic violence or abuse. There, the similarities generally end.

Ms. Finney-Chokey was the primary breadwinner during her marriage, as Mr. Chokey had been unable to find work and relied substantially on assistance from his parents. Conversely, Dr. Federov was the primary breadwinner in his marriage, but there is no indication in the report whether Ms. Federov worked.

Mr. Chokey assisted but did not take a primary role in raising his child. Dr. Federov saw his child often and developed a strong bond.

The mothers also sought to relocate at different times in the process. Ms. Finney-Chokey requested permission to return to England in the original divorce proceeding, when her child was two years old. Conversely, Ms. Federov did not seek to return to Australia until seven months after the divorce, and withdrew her initial request when a custody evaluator’s report stated that a move would not be in the child’s best interest. She moved for permission to relocate again when the child was six.

In Oregon, long-distance moves by a parent with a child are reviewed for whether the move is in the child’s best interest. This does not mean, however, that a move that benefits a parent cannot also benefit the child. Ms. Finney-Chokey had had difficulty establishing a practice in Chinese medicine in Oregon and had taken other work instead, and had an offer of employment from a family friend in England that would enable her to either establish a practice or retrain. As a result, a move would benefit her, but it would also benefit the child in light of Mr. Chokey’s poor work history. Ms. Finney-Chokey would be the primary support for the family regardless of where she went, and as a result, the move was considered beneficial to the child. Conversely, Ms. Federov’s access to employment and single parent benefits in Australia was considered less important because the impact on the child were not shown. Dr. Federov was employed, so there were no special considerations about the benefit to the child of Ms. Federov’s potential income.

A critical point in court’s consideration in Finney-Chokey was the father’s lack of significant connection to Oregon. Mr. Chokey did not have a stable job and primarily brought the family to Oregon for outdoor enjoyment. The court noted that there was no evidence to suggest that he would necessarily remain in Oregon. Conversely, Dr. Federov was employed on the Oregon coast and sought to move elsewhere in the state. He had a solid work history and skills that could enable him to find work or open a medical practice.

The other critical factor was the children’s age. As noted above, in Finney-Chokey, the child was two years old at the time of the divorce. She could be expected to adjust to a move much more easily sooner rather than later, and the court recognized that a later move, if sought, would not be expected to be in the child’s best interest. Conversely, in Federov, the child was six when the motion was filed, and a previous custody study had recommended against a move. Although the court did not raise the question of age, the findings indicated that the child was not expected to benefit from the move.

The results as can be inferred, differed. Ms. Finney-Chokey was allowed to relocate to England with the child. Ms. Federov was not allowed to relocate to Australia.

Overall, if you want to take your child a long distance from Oregon, and the other parent disagrees, the courts will sometimes allow the move. You should think very carefully about whether the child will benefit more from staying or going. If you think going will benefit the child, you should be prepared to demonstrate it. You should probably consider discussing the question with a lawyer to understand the legal standards and a psychologist or social worker to assess the situation.

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