Some of the most difficult cases for family law judges to decide are move-away child custody cases, which is when the custodial parent seeks to relocate with his or her child to another geographic area. The requested destination could be a 60-mile move or a 6,000-plus-mile move. After separation, when a custodial parent decides to move, often heart-wrenching decisions have to be made about where the children will live and to what extent the other parent will maintain a relationship with them.

If a court grants the move, the non-custodial parent will no longer be able to participate in the day-to-day life of her or his child — missing out on birthdays, school events, helping with homework and extra-curricular activities. On the other hand, if the court denies the custodial parent’s move-away request and the custodial parent has no choice but to move away from his or her current geographic location, then the child will be separated from the custodial parent. In either situation, the child loses.

Our increasingly mobile society and the economy have contributed to an upswing in move-away(s). Many times a divorced/separated parent wants or needs to return to her or his home state or country to be able to take advantage of a family support system. Often a parent is going to where a job or remarriage necessitates the move. It is the exception rather than the rule that the parents can agree on one parent moving and the resulting changes in timeshare, which usually means that the non-moving party has the child during the majority of holidays and vacation. However, this can prove to be problematic when very young children are involved and they cannot spend significant time away from the other parent. The majority of the time these situations become emotional powder kegs and the parties can’t agree on anything, let alone the over-arching concern, i.e., what is in the child’s best interest.

In these cases, it is up to the court to decide whether to allow the relocation with the children. States have different rules surrounding move-away custody, but in general the best interest of the child is the gold standard and this will be the focus of the court in making its ruling. In California and other states with permissive move-away laws, the burden of proof will be on the non-custodial parent (usually those parents who spend less than 35 percent of the time with the children) to prove that the move will be harmful to the child. Conversely, states with more restrictive laws on move-away(s) may place a higher burden on the custodial parent to show that the move will be in the best of interest of the child.