As discussed in the previous articles in this series, a court will determine a custodial parent request to relocate with a child over the objection of a non-custodial parent by using the factors set forth in the Tropea case. The fifth and last of these factors is the existence of a geographic relocation restriction agreement between the parties.
Very often in negotiating divorce or custody agreements, the issue of a geographic relocation clause comes up when a non-custodial parent wants to include some restriction on the custodial parent moving with the child. These restrictions often are written in very broad terms as a limitation of a specific mileage, or radius from the child’s current home, or a specific list of counties, or areas, that would be acceptable.
However, they are written, many times these geographic relocation restrictions are not worth the hassle or cost involved in negotiating them.
In advising non-custodial parents, it is important to remind them that there is the Tropea standard. They must keep in mind that if the custodial parent seeks to relocate, and they object to it and the matter goes to court, a judge is going to apply this standard and a relocation restriction in an agreement is only one factor to be considered. So in other words, such a clause is no guarantee that the custodial parent will be prevented from relocating. The best way a non-custodial parent can ensure that the custodial parent does not relocate away from them with the child, is to be involved in their child’s life as much as possible. A parent who is part of the daily fiber of their child’s life, is in a terrific position to stop a relocation by the custodial parent.
Non-custodial parents who are absent from their child’s life, see them very infrequently, and are not involved with the child’s education, extracurricular activities, or other facets of the child’s life, will not be in a strong position to stop the custodial parent from relocating with the child. A geographic relocation cause may not be of much help to them in any event.
From the perspective of the custodial parent, a geographic relocation restriction can be undesirable. After all, it is one factor that a court can consider in denying a proposed relocation. However, maybe the best way to handle a geographic relocation restriction from the perspective of a custodial parent is to simply recite in any agreement that any geographic relocation would be considered according to the Tropea standard. After all, if the parties cannot agree, this is the standard that the court will use to make this decision for them.
Relocation of a custodial parent poses many legal issues. A custodial parent considering relocating with their child should consult an experienced attorney who is well-versed in this complex issue.