Non-custodial parent issues involving a move away order in Utah usually arise when a parent wants to move out-of-state due to a new job opportunity, or if he/she is getting remarried. When one parent wants or needs to relocate and to move away with their child(ren), they usually need to get the consent of the other parent. If the other parent refuses to consent, the parent planning to relocate can seek a move away order from the court.
Primary Custodial Parent and Move Away Order in Utah
If one parent is the primary custodial parent, recent cases in Utah show that the court is likely to allow the parent and child(ren) to move. Utah code provides that “a parent entitled to custody of a child has a right to change the child’s residence, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.”
The interpretation of this section of the Utah Family Code is not that straightforward. There have been many contradictory appellate decisions over the years. Many courts have imposed restrictions on a parent’s right to move and relocate based on factors such as proving the move is “essential, imperative, necessary or expedient.” Other courts have taken the position that the primary custodial parent has the absolute right to move.
In cases where the child(ren) spend a considerable amount of time with each parent and have joint or “shared” custody, the problem becomes more complex and the court takes into consideration the best interests of the child.
Burden of Proof Lies with Non-custodial Parent
The custodial parent who is relocating does not necessarily have to prove to the court that the move is either “necessary” or that the move is “in the best interest of the child.” On the contrary, in move-away cases, the non-custodial parent has the burden to oppose the move and show that
- 1) the move would cause detriment to the child and
- 2) the custodial parent has a bad faith basis for moving.
Condition in Previous Court Order
If the parties previously signed a stipulated agreement that requires the custodial parent to obtain the other parent’s consent to move, the custodial parent must show that the decision to move was, in fact, made in good faith. Despite this, the non-custodial parent still has the burden to prove that the move would be detrimental to the child.
Using Move as Grounds to Modify Existing Custody Order
Most disputes regarding a move away arise when one parent having sole physical custody wants to move with the children. In this situation, the parent relocating has the presumptive right to move without the burden of showing the move is necessary. Changed Circumstances Rule – Burden of Detriment
If there is an existing custody order and the primary custodial parent wants to relocate with the child, it is the non-custodial parent who bears the burden of showing that the move would cause detriment to the child and that existing order be re- evaluated. Court Discretion in Determining Child’s Best Interest:
If the non-custodial parent is successful in showing that the move could be detrimental to the child, the court must then decide whether a change of custody is in the child’s best interest. Some factors taken into consideration by the court when deciding whether to modify and change a custody order include:
- The reason for the move
- How far the child would be moving
- The child’s age
- The relationship the child has with each parent
- The child’s wishes (considered based on age and maturity)
- The child’s stability and continuity in the current custodial arrangement
- The current time-ratio the child has with each parent
The Affect of Joint Physical Custody on Move Away Request
In situations when parents have joint custody, and one parent does not want the other parent to move away with the child, the parent seeking to move will need to request a move away order. The parent will have to show that the move is in the child’s best interest.
Liberal visitation v. Joint custody
The courts use a different analysis in assessing liberal visitation as compared to joint custody situations where the parents share joint physical custody and one parent wants to move with the children. There is case-law that sheds some light on how court’s interpret sole custody with liberal visitation from a joint physical custody arrangement. If the parent’s time-share is less than 30 percent, courts will generally find that sole custody is with the other parent. If a parent’s time is more than 30%, the court tends to look at other factors such as how much time a parent visits to help with homework, participates in doctor visits, parent-teacher conferences and extracurricular activities that is not part of their custodial time. When a parent has a time-share of 45 percent or more, courts generally characterize the parenting arrangement as joint custody.
International Move Away Orders
International Move Away Orders pose even greater problems for the courts where they must take into consideration 1) the impact of the child moving to a place with a different culture, 2) the ability of the non-custodial parent to visit and keep up a relationship with the child and 3) the obvious problem of retaining Utah court jurisdiction and the ability to issue orders about custody, visitation and support.
Minimizing Impact of Move
When courts do approve a move away order, courts have tried to lessen the impact of court-approved moves and to encourage “frequent and continuing contact” with both parents in many different ways such as:
- Ordering the moving parent to bring the child back to Utah on a periodic basis
- Expanding school vacation visitation periods for the non-custodial parent
- Pay the non-custodial parent’s expenses to travel to the children for visits or
- Allocating all travel expenses to the custodial parent
Move Away Order Forms – Filing a Request for Move Away Order
The forms for filing a move away request are the same forms for any other type of Request for Order in a family law case. The key part of the move away forms is the supporting Declaration since it is imperative that the basis for your request to move away is clearly substantiated for the court’s consideration. Creating a clear and concise declaration is your opportunity to tell your story to the court and this Declaration is probably the most important aspect of the paperwork.
For help getting or responding to a move away order call Stevens & Gailey. We can help prepare all the move away order forms for Utah, set your hearing and help make sure the other party is properly served with the paperwork.
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