For any proposed relocation, which is defined as “a change in a residence of the child which significantly impairs the ability of a nonrelocating party to exercise custodial rights,” either every person with custody rights to the child must consent or a court must approve it.
The party proposing a relocation must notify every other person with custody rights. If the relocating party does not provide reasonable notice, then the court may consider this failure as any or all of the following:
- A factor in making a determination regarding the relocation
- A factor in determining whether custody rights should be modified
- A basis for ordering the return of the child to the nonrelocating party if the relocation has occurred without reasonable notice
- Sufficient cause to order the party proposing the relocation to pay reasonable expenses and counsel fees incurred by the party objecting to the relocation
- A ground for contempt and the imposition of sanctions against the party proposing the relocation.
*Any consideration of a failure to provide reasonable notice, however, will be subject to mitigation if the court determines that it was caused in whole, or in part, by abuse.
Method and Timing
Notice, sent by certified mail, return receipt requested, must be given no later than 60 days before the date of the proposed relocation, or, 10 days after the date that the individual knows of the relocation, if both of the following conditions are met:
- The individual did not know and could not reasonably have known of the relocation in sufficient time to comply with the 60-day notice
- It is not reasonably possible to delay the date of relocation so as to comply with the 60-day notice
The following information, if available, must be included with the notice of the proposed relocation:
- The address of the intended new residence
- The mailing address, if not the same as the address of the intended new residence
- Names and ages of the individuals in the new residence, including individuals who intend to live in the new residence
- The home telephone number of the intended new residence, if available
- The name of the new school district and school
- The date of the proposed relocation
- The reasons for the proposed relocation
- A proposal for a revised custody schedule
- Any other information which the party proposing the relocation deems appropriate
- A counter-affidavit, which can be used to object to the proposed relocation and the modification of a custody order
- A warning to the nonrelocating party that if the nonrelocating party does not file with the court an objection to the proposed relocation within 30 days after receipt of the notice, that party will be foreclosed from objecting to the relocation
If any of the required information is not known when the notice is sent but is later made known to the party proposing the relocation, then that party must promptly inform every person who received notice.
A person entitled to receive notice may file with the court a counter-affidavit to object to the proposed relocation and seek a temporary or permanent order to prevent the relocation. He will also have the opportunity to indicate whether he objects to modification of the custody order.
Nonrelocating Party Does Not Object
If no objection to the proposed relocation is filed with 30 days of notice, it will be presumed that the nonrelocating party consented, and the party proposing the relocation must then file all of the following with the court before relocating:
- An affidavit stating that the party provided notice to every individual entitled to notice, the time to file an objection to the proposed relocation has passed, and no individual entitled to receive notice has filed an objection to the proposed relocation
- Proof that proper notice was given in the form of a return receipt with the signature of the addressee and the full notice that was sent to the addressee
- A petition to confirm the relocation and modify any existing custody order
- A proposed order
If a nonrelocating party did not object but later petitions the court for review of the custodial arrangement, the court will not accept any testimony challenging the relocation.
Nonrelocating Party Objects
If the nonrelocating party objects to either relocation or modification of the custody order, a verified counter-affidavit must be both filed with the court within 30 days of receipt of notice and served on the other party by certified mail, return receipt requested. A hearing will then be held.
After a timely objection has been filed and before the relocation occurs, the court must hold an expedited full hearing on the proposed relocation. If a court finds that exigent circumstances exist, it may approve the relocation pending an expedited full hearing.
If the court approves the proposed relocation, it must modify any existing custody order or establish the terms and conditions of a custody order.
Effect of Relocation Before Hearing
A court must not make any presumption in favor of the relocation if the relocating party moves with the child before a hearing.
Burden of Proof
The party proposing the relocation has the burden of establishing that the relocation will serve the best interest of the child, and each party has the burden of establishing the integrity of that party’s motives in either seeking the relocation or seeking to prevent the relocation.
In determining whether to grant a proposed relocation, the court shall consider the following factors, giving weighted consideration to those factors which affect the safety of the child:
- The nature, quality, extent of involvement, and duration of the child’s relationship with the party proposing to relocate and with the nonrelocating party, siblings, and other significant persons in the child’s life
- The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child
- The feasibility of preserving the relationship between the nonrelocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties
- The child’s preference, taking into consideration the age and maturity of the child
- Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other party
- Whether the relocation will enhance the general quality of life for the party seeking the relocation, including, but not limited to, financial or emotional benefit or educational opportunity
- Whether the relocation will enhance the general quality of life for the child, including, but not limited to, financial or emotional benefit or educational opportunity
- The reasons and motivation of each party for seeking or opposing the relocation
- The present and past abuse committed by a party or member of the party’s household and whether there is a continued risk of harm to the child or an abused party
- Any other factor affecting the best interest of the child
This is only a summary, and the full text of the law should be consulted.
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