non-custodial parent moving out of state with child

Custody and Moving Out of State (or Country) – What Rights Do Non-Custodial Parents Have?

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For separated parents, one of the hardest elements of life post-divorce is being able to move and travel freely without infringing on the rights of the other parent per your custody agreement, and without completely losing out on the ability to spend time with your child. While child custody agreements are hard enough to reach when parents live near each other, if a parent wants to relocate, the matter can become especially complicated.

If you are a parent in Alabama who has visitation rights with your child (but you do not have primary custody of your child), here is an overview of what you need to know about your rights should the parent with primary custody want to move out of state:

Can My Child’s Other Parent Move Out of State?

The first question that most non-custodial parents have is whether or not a custodial parent has the right to move a shared child out of state in the first place. The answer is: it depends. It’s always best to refer to your child custody agreement/parenting plan to determine what the rights of each parent are. If your visitation rights have been entirely revoked and the other parent has absolute legal decision making and physical custody over the child, then that parent would have a good chance of being able to move the child out of state. However, if you have visitation rights with the child that would be affected by an out-of-state move, the other parent cannot just up and move without notifying you.

Notice of Relocation

In Alabama, when a parent wants to relocate (defined as a change in the principal residence of a child for a period of 45 days or more) a child out of state, and that relocation distance is 60 miles or more from the non-relocating parent who is entitled to custody or visitation with the child, the relocating parent must provide the non-relocating parent with notice of the move within 45 days of the move.

After receiving notice of the relocation, the non-relocating parent maintains the right to pursue an objection proceeding, as well as seek a temporary (or permanent) order to prevent the relocation. The proceeding must be filed within 30 days of receiving notice of the relocation.

The notice given to the non-custodial parent must contain the following information.

  • Mailing address of the place that the custodial parent is planning to relocate to
  • Phone number
  • The school that the child will be going to
  • The reason for moving to a new place
  • The date on which they plan to relocate
  • Proposed modifications to the existing visitation arrangement

What Happens Next?

Assuming that you file an objection to the relocation, this objection will reopen the question of who should have custody of the child (assuming that the custodial parent is set on moving and will not reconsider). If this is the case, then the court will consider the child’s best interests in determining with whom the child should live, including:

  • The relationship that the child maintains with the party who is intending to relocate;
  • The age and developmental stage of the child;
  • The impact that a move or change of custody would have on the child;
  • The travel time that would be required for the child to spend time with both parents;
  • The preferences of the child;’
  • The reasons the custodial parent wants to relocate the child;
  • The reasons why the non-custodial parent opposes the relocation; and
  • Various other relevant factors.

What if My Ex Took My Child Out of The Country?

Language of Parenting and Joint Conservatorship Plan

There are situations in which the parent may have sole custody of the child. If you don’t have custody or shared custody, you may not have many options for bringing back your child to Alabama. Even if the parenting is appointed as joint managing conservators or joint possessory conservators, the court may designate one parent as the child’s primary residence without any reference to the geographic location.

In other parenting plans, the court may establish a particular geographic area within which the conservator is required to maintain the primary residence of the child. Hence, the language of the parenting plan has a significant impact on whether you can file a motion against international relocation or not.

If your ex has been designated as the child’s primary residence, you may not be able to bring your child back since there has not been any violation of the existing child custody agreement. In relation to this, you can turn to international law if the custody agreement establishes the geographic residence of the child.

Applying the Hague Convention on the Civil Aspects of Child Abduction

You can ask an Alabama court to apply the Hague Convention on the Civil Aspects of Child Abduction if your ex did not have permission to leave the United States with your child. This can help in returning your child back to Alabama. The law applies to US citizens that are currently outside the country with the other parent.

What Happens if a Parent Moves without Providing Notice?

In some cases, a custodial parent (or a non-custodial parent, for that matter) may move a child out of state without following the proper course of action and providing the other parent with notice of the move in advance. If a parent fails to provide notice to the other, per Alabama Code Section 30-3-168, the court maintains the right to consider the failure to provide notice a factor in making its decision regarding the change of the child’s residence, as well as whether or not a custody/visitation arrangement should be modified. If your ex-spouse has already left the state with your child without giving you notice, you should contact an Alabama family law attorney as soon as you can and take the necessary steps to protect your visitation rights. Assuming it was deliberate on your ex-spouse’s part to leave the state without informing you, your attorney might be able to convince the court to modify the custody arrangement and help you get full custody of the child.

 

Contact Our Alabama Child Custody Attorneys Today

If you have questions about relocation when you are divorced or separated from your child’s other parent, or if you would like to object to the relocation of your child, our lawyers at the law offices of the Alsobrook Law Group can help. We have years of experience representing parents in child custody matters in our state and we know how sensitive and important these issues are. To get started, please drop by our office in person, call our office directly at 334-737-3718, or send us a message to request a consultation at a time that works for you. We are here to help you navigate the law and understand your rights.