Q. After a divorce, can the primary custodial parent move out of state with the children absent a court order?
A. No. The primary custodial parent must petition the Court for relocation if it is going to affect the visitation rights of the other party.
Q. What does the Court consider in determining whether the primary custodial parent can move with the children?
A. The best interest of the children is still the consideration, however, the presumption will be that the children should move with the primary custodial parent. If the other party wants to change custody because of the move, they will have the burden of proving the move is not in the best interest of the children.
Q. What does the non custodial parent have to do to change custody?
A. To change custody, the non-custodial parent has to show two things: (1) that there has been a material change in circumstances that warrant a change of custody, and (2) that it is in the best interest of the children to change custody to the non-custodial parent.
Q. Is it a material change of circumstance if the custodial parent is moving out of state?
A. Most people would think the answer is yes, but its not. The fact that the primary custodial parent is moving does not change the facts that determined primary custody in the first place.
Q. Does there have to be a material change of circumstance for custody to change from one party to the other?
A. Yes. If you can’t show a material change then you don’t even get to the second part of the argument of best interest of the children. Of course the parties can always agree to change custody.
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