We live in a mobile society. We also live in a society that experiences a high rate of divorce. These two facts make for some of the most contentious litigation found in the domestic relations world. It is the fight over whether one parent, usually the one with primary physical custody, can take a child to another state to reside there on a permanent basis.
When we have children we all form the Currier and Ives image of the happy nuclear household. The children will grow up in an intact family with the love and respect of both of their loving parents. But when mom and dad split and mom shortly thereafter announces that she wants to move to Texas to re-up with her former boyfriend the term “nuclear family” takes on a whole new meaning. It was bad enough that father got dumped. It was worse that she took most of the assets. Then there was the child support. And now, topping the cake, is the concept that the children should live 2,000 miles away and see their loving father once a month and four weeks in the summer.
Can this happen in 21st century America? It does every day. Part of the reason is that none of the facts recited in the last paragraph really matter a lot. Custody is not about parental pain. It is about what is in the childrens’ best interests. So, how could it be in a child’s best interest to grow up hours away from one parent. Courts struggle with this issue every day. And, in so doing, they are not unmindful of how a custody result may be grossly unfair to a parent even though in the child’s best interest.
There is a three prong test employed when one parent proposes to move a significant distance from the other parent taking the children with them. The test comes out of a 1990 Superior Court case called Gruber. v. Gruber. 583 A.2d 434 (1990).
Prong 1: What is the potential advantage of the move and the likelihood the move will substantially improve the life of the custodial parent and the children? Also is the move the product of a momentary whim on the part of the custodial parent?
Prong 2: Does the motivation for the move have integrity and is the reason for opposing the move have a similarly sound basis? and
Prong 3: Are there available realistic alternative arrangements for substitute partial custody or visitation and will such arrangements adequately foster an ongoing relationship between the child and the non-custodial parent?
The initial burden is upon the party proposing the relocation to show the “advantage” to the parent and child. Each party has the burden with respect to the second prong addressing integrity for the dispute over relocation.
In these cases, past is usually prologue. A non-custodial parent intimately involved both physically and emotionally in rearing a child presents a major hurdle to that custodial parent who wishes to relocate. A parent whose involvement has been limited to routine visits and little more may find him or herself in a disadvantaged position. Courts also examine whether parental conflict over custody issues may make distance an attractive option. On the other hand there are also cases where a modest level of conflict drives one parent to ask to relocate because “life will be simpler.” This does not usually make for a successful case.
The most common and most nettlesome area of conflict is over the question of whether relocation “will substantially improve the life of the custodial parent and the children.” There is language in the Gruber case that seems to imply that benefit to the custodial parent may be enough even without palpable advantage to the children. In metropolitan areas with competitive schools and rich cultural resources, it is sometime difficult to persuade a court that there is an advantage to the child associated with the move.
In recent years there has been a vast increase in this breed of custody litigation. There are many issues to consider and many reported cases addressing the issue. But Gruber stands as the seminal case. The cases decided in the 1990s tended to focus on the benefit to the parent and permit relocation even though a distinct advantage to the child was not often clear. But in the past decade, the trend has shifted against relocation with recent cases weighing how the children benefit from the move in ways that differ from the happiness of the custodial parent. One thing remains clear. People who have already experienced and angst and heartache of separation and divorce do not respond well to plans intended to permit relocation of their children to distant places.