When parents end their relationship, they must find a way to successfully raise their shared children separately. This often proves to be difficult and very emotional, especially when they disagree on what is or is not in the best interest for the children.
A common and potentially serious conflict between coparents involves the relocation of the child or children a significant distance away from one of the parents. When a move threatens one parent’s time with their child, the courts must ensure that relocating is something that will benefit the children and be in their best interest.
This is not something that is taken lightly. Laws in Oregon and Washington establish procedural rules and notice requirements in order to preserve the contact rights of the parent who is not relocating. Courts will decide in favor of the child or children’s best interests and not those of either parent.
Child Custody Basics
Child custody laws vary from state to state but there are two types of custody that are fairly standard everywhere. These are:
Legal custody which provides one or both parents the right and responsibility for decision making on behalf of the child or children involved.
Physical custody which concerns the living arrangements for the child or children.
Legal and physical custody can be joint or sole. In some cases, it is possible for one form of custody to be joint and one form to be sole.
In Oregon, joint legal custody is only awarded when both parents agree to fully share the responsibility of decision making. If that is not possible then sole legal custody is awarded to one parent. Physical custody is often shared jointly with the child splitting their time between the homes of both parents.
The parent with legal custody makes decisions related to those regarding education, healthcare, religion and more. Even so, neither parent has the right to move a significant distance away with the shared child or children without first going through the courts.
When One Parent Wants to Relocate
Oregon law allows for a move of up to 60 miles away from a current residence with no need to notify or get authorization from the courts. Anything farther than 60 miles though requires notification of both the courts and the noncustodial parent.
The courts will weigh the positive reasons for and outcomes of a move against the negative ones for the shared child or children. If these factors are equal, the courts will err on the side of caution and deny the relocation. The courts also take the level of involvement of the noncustodial parent and the state of his or her relationship with their child or children into consideration.
The courts do not base their decisions regarding a relocation on the parent’s wishes. There are countless reasons to want to move, especially after a divorce or as a single parent. Remarriage, a career change or a desire to be near supportive friends and family will often necessitate a move. Even if the parent who is considering the move believes that relocating the child or children would benefit them, the courts still take careful and unbiased consideration of all relevant factors.
Parents who decide to raise their children separately initially create a custody plan together, or have one created for them by the courts, during a divorce or custody proceeding. This custody agreement typically lays out things such as the amount of time the child or children will spend with each parent, holiday schedules, transportation, communication, decision making, information sharing and relocation.
The parent who is considering a long-distance move must give reasonable notice to both the noncustodial parent and the courts of their intentions. At that point, either parent may file for a modification to the custody plan either in favor of or against the proposed move. The parents must demonstrate to the courts how the child or children’s circumstances would change by a relocation. A judge will then make the determination to allow or deny it.
Parents can also agree on a new shared custody arrangement, but this must be done prior to a move and approved by the courts.
Notable Child Relocation Cases in Oregon
There have been a few major cases in Oregon concerning child relocation which demonstrate the seriousness with which the courts take a potential move and some of the factors it uses to determine what is and is not in the best interests of the child or children.
In the 2009 case In re Marriage of Federov, the Court of Appeals upheld a previous decision by a lower court to deny a relocation request made by a mother who sought to move permanently from Oregon to Australia with her daughter. The court decided that a move to Australia would significantly and negatively impact the child’s relationship with her father. Because he was not willing to also move to Australia, the court denied the relocation.
In the 2005 case In re Marriage of Hamilton-Waller, the Oregon Court of Appeals overturned a lower court's ruling to not allow a woman to move with her children from Oregon to Holland. It determined that it would be in the children’s best interests to make the move as the mother’s job there would allow her to be home more and provide more money, which would in turn create better education opportunities for the children. The court also took the lack of parenting from the children’s father in Oregon into consideration.
Contact an Experienced Family Law Attorney
Whether you are the parent who wants to move with the children or the parent whose children could be relocating, there are rules that must be followed. Failure to follow these procedures could result in the denial of your move, less time with your children or being ordered to return to your previous place of residence. A family law attorney can help you protect your rights.
At Gearing, Rackner & McGrath, we know that every situation is unique. Custody issues are especially emotional, and our attorneys are committed to providing compassionate and personalized service. We have the experience, local resources and knowledge to help you and your family move forward through a stressful time. Contact Gearing, Rackner & McGrath for a consultation.