Child Custody and Post-divorce Relocation in the Light of Braver Et Al
| Publication year | 2005 |
| Citation | Vol. 2005 No. 12 |
December 2005 - #5. CHILD CUSTODY AND POST-DIVORCE RELOCATION IN THE LIGHT OF BRAVER ET AL
The high rate of divorce in the United States, with the attendant complications when children are involved, has in recent years led to growing demands on court time and resources. Although statistics vary, it is estimated that as many as 40 percent of U.S. marriages, many of which involve children, end in divorce and 31 percent of children whose parents are married experience parental divorce.(fn1) Many of these cases require repeated interactions with the court systems, as parents and judges attempt to identify the best possible arrangements for the children.
Following a divorce, one or both parents often wish to move away. However, research is scant regarding the short-term and long-term implications of relocation for children, resulting in a dearth of guidance from the social sciences regarding this question. Partly as a result, judicial decisions regarding this issue are among the most difficult and contentious of any in the already complicated area of child custody. This article outlines the conclusions that various courts have come to on this issue, and summarizes current research regarding the effects of relocation on children following divorce.
How Prevalent Is The Issue of Post-Divorce Relocation?
It is estimated that, within four years of separation and divorce, 25 percent of mothers with primary physical custody of their children move to a new location.(fn2) Further, Braver, Ellman, and Fabricius found that as many as 61 percent of college-age students whose parents are divorced have lived at least an hour away from one of their parents (in this case, either parent may have moved, not necessarily the custodial mother).(fn3) While little is known about the impact of post-divorce relocation on children, there is a larger body of research concerning the effects of relocation on the general population of children. In general, it has been found that relocations have negative implications for children,4 5 that older children are more adversely affected than younger children when they move following a divorce,6 7 and that college students whose parents had moved (regardless of whether the student had moved) were more adversely affected than students whose parents had remained near each other.(fn8)
Response of Courts and Legislatures to the Problem of Relocation
Post-divorce relocation cases pose some of the most difficult problems faced by divorce courts. Such cases often present the court with a bewildering range of competing interests and factors to consider. The prevalent legal presumption that children are best served by consistent contact with both parents must be weighed against a natural disinclination to limit a parent's freedom of movement. Any move, even in an intact family, can create stress for children and disruption in their routines, but circumstances can create a situation in which the advantages of moving outweigh the potential drawbacks. On the positive side, parents may move in order to take a better job that will allow them to improve the material circumstances of their children. It may be possible to move out of a high crime neighborhood with poor schools to a much better environment, or to a location that allows greater contact with the custodial parent's extended family. On the other hand, the desire to relocate may be prompted by circumstances that have little to do with the best interests of the family's children. For example, if a custodial parent remarries, he or she may wish to live with the new spouse in an area where schools are no better than those in which the children are currently enrolled, and with no increase in family income. As Braver et al. have noted,(fn9) some states have statutes that provide a presumption that custodial parents have the prerogative of moving (Oklahoma, Wisconsin, and Tennessee), while other have statutes that preclude such moves (Montana and South Carolina). In the same way, some states place the burden of proof on the parent who wishes to relocate (Arizona, Alaska, and Arkansas), while others place the burden on the parent who opposes the move (California, Connecticut, and Louisiana).
While some courts have held that what is good for the custodial parent generally contributes to the best interests of the child, other courts have placed more emphasis on the importance of establishing and maintaining a strong relationship between the divorcing family's children and the non-custodial parent. This divergence of approaches by courts is understandable when one considers that the courts are asked to answer a complex question in simple terms: which is more important, the need or desire of the custodial parent to relocate or the need of the child to have both parents readily available? The already complex question...
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