Before March 2020:
It is easy to refer to many things that used to be by saying “that was oh so 2019” but issues of law and the family are generally are not among them. Practitioners and judges alike seek stability in parents and children’s lives and a preservation of the status quo. Family law and child custody in particular seeks to preserve the rights of the children to have ongoing meaningful relationships with their parents and values the parenting time or custodial time or visitation time of both parents with the children. Court custody orders or custody agreements include an ongoing schedule, often alternating weekends and weekdays so that the parents have meaningful time with their children and visa versa-the children can count on when they will see each parent, each week, often referring to particular days as a Mommy day or a Daddy day.
This desire to preserve and protect the parent/child relationship and the ongoing access between parent and child is what makes relocation cases from the former residence or “home state” or jurisdiction by one parent with the children so difficult to litigate and why there is an online cottage industry, with “How To Win a Relocation Case” websites including advice for parents in nearly every state.
Relocation or Move Away Cases by State are Extremely Difficult to Prove.
In order to relocate, from New York State with the children, the burden of proof on the relocating parent is “best interests” of the children. The parent moving away must show that it is in the child’s best interest to be away from the non-relocating parent because…of a remarriage…a better job…a bigger yard…family support? The stay-at-home parent if the relocation or move away is allowed will lose the ability to attend weekday soccer matches, ballet recitals, parent teacher conferences as well as whatever access or parenting time is scheduled for them during the weekdays and even on alternating weekends if the move is too far away.
So serious are the repercussions of the court that rarely would any parent dare relocate with their children without court permission or written permission of the other parent. Courts can order a change in custody to the non-relocation parent, hold the move away parent in contempt of court or order the children returned to the home state or jurisdiction.
Most US states report that relocation or move away is one of the most difficult and vexing issues for a court to decide in all of family law and numerous enterprising attorneys offer tips on how to succeed in this litigation by state online:
Pennsylvania: Custody relocation cases are some of the most difficult cases that family court judges are required to decide. In many relocation cases, the proposed relocation, if granted, will prevent the non-relocating party from having regular contact with his or her child.
Florida: Florida child custody law can require a parent to obtain approval from their ex or a judge before moving more than 50 miles away. See Florida Child Custody Statute 61.13001. Failure to abide by the law can result in contempt of court. Additionally, the court can compel the return of the child and take the parent’s actions into account when determining custody.
Illinois: All issues involving children are resolved by the court using “the best interest of the child” standard. Generally, relocations are disfavored because they tend to disrupt the connection between the child and the remaining parent.
California: Move away cases involving child custody matters are the most challenging cases … The reason for the move: In California, while the move away parent is not required to justify the move- the health, safety, age, and welfare of the child is paramount to the courts in determining the outcome of a move away case, and the court has broad discretion in making that assessment.
And Then Came COVID-19…
When COVID-19 was declared a nationwide pandemic last Spring, parents seemed to act with impunity to move away or relocate with their children. Courts that had prior to COVID-19 acted swiftly to show their displeasure at parents who moved away with their children without court permission no longer ordered the swift return of the children to the “home state”. The non-relocating parent’s rights to their children were no longer superior to other factors. Parents who moved out of state were not ordered back to city apartments they had abandoned during COVID-19. In many cases, they are still not back. Remote learning children helped cement the new out of city or out of state “temporary” residences.
Val Kleyman, Esq., represented two fathers during Spring 2020 whose ex-wives (or soon to be ex) “relocated” with the children. In one case, the mother moved, she said for the summer only, to a cottage in the woods the family used about four hours from NYC. Come Fall, the mother refused to return to NYC with the child. The court did not force her back or return the child to the father’s custody in NYC. In the other case, the mother said she was visiting her parents in North Carolina for a week. After the week went by, she too refused to return to NYC. Both mothers cited COVID-19, their own weakened immune systems, children traveling in elevators and one child’s special learning needs and other COVID-19 related reasons as a basis not to return to NYC with the children. Both fathers had a now ineffective court specifically granting them visitation or parenting time they could no longer exercise.
In another case, the mother and children “relocated to Maine” with the father’s permission so the children could attend an inexpensive private school in Maine where the COVID-19 spread rate was lower than most anywhere else and in person schooling was available for the children. The children are supposed to be back in NYC for school starting Fall 2021. The mother is vacillating now using one child’s “special needs” as a basis not to return to NYC.
What Happens Next?
All fifty states adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) in which a child’s “home state” is established if the child has lived in the state for six months. If the courts don’t insist on the return of the children to their “home state” during COVID-19 will the courts allow the new temporary home state to exert jurisdiction over the ongoing custody and parenting time of the children thereby dealing another blow to the left behind parent? In the examples cited above, will these fathers have to litigate for the return of their children in the foreign jurisdiction (North Carolina and Maine) because the children have been there or soon will be there for over six months? An intended temporary relocation should be considered just that. No court should allow a parent to take the children to another jurisdiction and then declare that state the “home state” of the children for purposes of litigation over custody. The original “home state” must retain its jurisdiction in these cases no matter how long the COVID-19 interruption to original jurisdiction continues.