NCPA - National Center for Policy Analysis

Divorced Parents May be Limited in Moving Away with the Kids

February 12, 2004

Some states are making it more difficult for divorced parents with custody of their children to move far away from the other parent, according to the Wall Street Journal. While states have traditionally upheld the notion that a move that benefits a parent will benefit the children, some courts and legislatures are looking at whether such a presumption is always the case.

  • Last year, the Georgia Supreme Court awarded primary custody to a mother, whose ex-spouse had moved to Alabama.
  • The state of California passed a law that affirmed a 1996 court ruling allowing parents to move in most circumstances; however, the California Supreme Court will hear a case next month involving a challenge to that law.
  • Alabama recently passed a statute that presumes moving doesn't always benefit children; Pennsylvania is looking at a similar measure.

About one-third of states, including Tennessee, favor the moving parent, placing the staying parent in the position of having to prove harm to the children. However, another half-dozen states, including Missouri, Arizona and Illinois, have placed the burden of proof on the parent who chooses to move.

Some women's rights groups and family lawyers argue that placing the burden of proof on the moving parent will favor fathers over mothers, since mothers are often the custodial parent and will more likely move due to job prospects or re-marriage.

In some states such as Florida, however, neither parent is favored. Instead, the courts look at the factors in each case and how a move benefits the parent and the child.

Source: Michelle Higgins, "Divorced Parents Face New Legal Hurdles," Wall Street Journal, January 22, 2004.


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