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Relocation Child Custody

Hoffkins Legal Services, LLC May 3, 2024

One of the more difficult cases that lawyers and judges face in the realm of family law is the relocation case. These cases involve one parent of a minor child who wants or needs to relocate to another part of the country and to take the child or children along. Obviously, if one parent moves to another part of the country or any significant distance, it will be a hardship on the other parent who has to stay behind. No doubt the parent who has to stay behind will have less time to be with the child. Every parent fears having less time with their child, for it will likely cause a weakening of the relationship between the child and the parent who must stay behind. For these parents, its just not enough to see their children on holidays and summer vacations.

Today, more and more fathers are becoming so much more involved in caring for their children. The “Mad Men” generation is gone. In that old paradigm, the mom was the primary caretaker of the child and the dad went out to work long hours and became a good breadwinner for the family. Then often when dad did get home, he needed to relax and didn’t spend a lot of time with his children. We all remember the famous song “The cat’s in the cradle” by Harry Chapin in which a father spends so much time getting ahead in his job that he misses out on doing things with his son that would allow him to create a real bond with him such as playing catch. My observation as an attorney, and from my own experience as a father, is that today’s generation has learned its lesson. Today’s generation of fathers want to have close relationships with their children and not miss out on watching them grow up.

I see this all the time in the cases that I work on that do not involve relocation. Even when the father and the mother are going to live relatively close to each other after they split up, fathers are still asking for as much time with their children as possible. These fathers are not willing to settle for every other weekend. These fathers want every other weekend plus a couple of overnights at their house during the week. Considerable litigation is spent over how many overnights each parent will have with their children.

Particularly here in Fairfield County, Connecticut, we see a more mobile workforce that needs or wants to move to other parts of the country. People often come to Fairfield County to work for major corporations like General Electric or for some of the large hedge funds that are headquartered here. After they are here for a while, its possible that the relationship breaks down, and the parties seek a divorce. In these cases, the party who doesn’t have a job here may want to move back to where they came from to be close to family. Or they may need their family to assist with child care since the parties are now divorced. Another scenario occurs after the parties have been divorced here. In this scenario, one party may be offered a really good job opportunity in another part of the country. Or, one of the parents may have re-married, and their new spouse is offered a great job in another part of the country.

If the parents cannot agree on some kind of long distance visitation schedule, then the court will be asked to decide the case. Connecticut Courts will use one of two different standards in deciding these types of cases depending on whether the parties are already divorced or just in the process of getting a divorce.

If the parties are just in the process of a divorce, then the court will apply the best interest of the child standard. This is the same standard that is used in all child custody and visitation cases in Connecticut. However in this scenario, the court must factor in the distance that the child will be away from the non-relocating parent, and what impact that will have on the child. Remember, that the standard is what is in the best interest of the child and not what is in the best interest of the parent.

Connecticut General Statutes section 46b-56 gives some guidance for the courts to follow in determining what is in the best interest of the child. This statute gives something of a twenty point laundry list of factors for the courts to consider in determining what is in the best interest of the child. However, the statute is also clear that the court may give whatever weight to any one of the factors in its judgment. In addition, the court may consider any other factors which it feels are important in its judgment.

When the parties have already divorced, and then one party petitions for permission to relocate, the Court will follow the standard stated in the case of Ireland v. Ireland, 246 Conn. 413 (1988). In this case, the Connecticut Supreme Court set up a burden shifting scheme which requires the moving party to prove by a preponderance of the evidence that relocating to another part of the country is for a legitimate purpose and that the location proposed is reasonable in light of that purpose. If the moving party sustains its burden then the burden shifts to the party opposing the move. That party must prove by a preponderance of the evidence that the relocation would not be in the best interests of the child.

This might seem unfair at first blush, for the moving party only has to prove that they have a legitimate reason. Most people would agree that it is much harder to prove what is in the best interest of a child. The later may often require psychological evaluations, and the testimony of counselors or therapists. However, Ireland recognized that in the original divorce the courts had already determined that living with the custodial parent is in the best interests of the child. In Ireland, the court seems to say that as long as the move is for a legitimate reason, then some deference should be given to the custodial parent, and leave it up to the non-custodial parent to prove that it is not.