Can a parent with custody move out of state with a child without permission of the other parent?
Similar to many family law issues, this depends upon individual state law. Most states have statutes that specifically address the question of the custodial parent's relocation. In many states, the custodial parent must provide a certain notice to the noncustodial parent and then the noncustodial parent has a right to object.
West Virginia's statute provides that the custodial parent "should be allowed to relocate with the child so long as that parent shows that the relocation is in good faith for
LegalSpeak: Palmore v. Sidoti (1984)
It would ignore reality to suggest that racial and ethnic prejudices do not exist or that all manifestations of those prejudices have been eliminated. There is a risk that a child living with a stepparent of a different race may be subject to a variety of pressures and stresses not present if the child were living with parents of the same racial or ethnic origin.
The question, however, is whether the reality of private biases and the possible injury they might inflict are permissible considerations for removal of an infant child from the custody of its natural mother. We have little difficulty concluding that they are not. The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect....
This is by no means the first time that acknowledged racial prejudice has been invoked to justify racial classifications. .
Whatever problems racially mixed households may pose for children in 1984 can no more support a denial of constitutional rights than could the stresses that residential integration was thought to entail in 1917. The effects of racial prejudice, however real, cannot justify a racial classification removing an infant child from the custody of its natural mother found to be an appropriate person to have such custody.
LegalSpeak: In Re Marriage of Gambla and Woodson (Ill. App. 2006)
Judge Gilleran Johnson (majority): "The Supreme Court determined that the custody award was unconstitutional, not because the trial court considered race, but because the trial court considered solely race. ... Volumes of cases from other jurisdictions have interpreted Palsmore as not prohibiting the consideration of race in matters of child custody. ... In this case, Kira's racial status did play a role in the trial court's decision to award custody to Kimberly. However, contrary to the dissent's contention, it was not the sole factor."
Judge Robert McLaren (dissenting): "Despite this court's weak protest to the contrary, the remarks in the trial court's letter of opinion show that the court's decision for custody improperly hinged on the sole factor of race: that only an African-American person can properly raise a biracial child in this society. An award of custody based solely on race is impermissible, as an improper exercise of a trial court's discretion. The United States Supreme Court has also specifically rejected the consideration of racial biases, or the effects of racial prejudice and classifications, in child custody matters as a violation of the equal protection clause of the United States Constitution. Thus, the trial court here erroneously used race as its basis for awarding custody."
a legitimate purpose and to a location that is reasonable in light of the purpose." Nevada law also provides that the custodial parent must give notice to the noncustodial parent and that failure to give proper notice can be a factor in the court's ultimate custody determination. In many states the primary custodial parent can relocate the child only if he or she provides advance written notice of approximately two months to the other parent. The other parent can then file a petition with the court seeking to block the relocation. Many state laws then require the court to determine whether relocation is in the best interests of the child. This is a multi-factor test that takes into account many factors. In most states the burden is on the parent seeking relocation to show to the court's satisfaction that the relocation does further the best interests of the child. In other states, the child—if of sufficient age—can object to the relocation and the courts will give that factor great consideration.
In those states that examine the relocation of a parent under a "best interests of the child" analysis, what are the factors that courts consider?
States have different factors that they use to determine the best interests of the child. Some common factors include: whether the relocation will improve the quality of life for the primary custodial parent and the child; whether the motivation for the move is legitimate or done in bad faith to frustrate the visitation rights of the other parent; whether the relocation will allow each parent a realistic amount of time to be a parent; whether the relocation will have a positive or negative impact on the child's stability; and whether the primary custodial parent is likely to comply with visitation requests from the other parent. Again, these factors can vary quite a bit from state to state. It is important to consult good legal counsel if confronted with this legally and emotionally difficult situation.
What is supervised visitation?
Supervised visitation means that a parent can have visitation but it must be supervised by a person approved of by the court. It can be either a counselor, other family member or another person designated by a court order. Usually, supervised visitation is required for a parent when there is a concern of abuse, neglect, or past criminal behavior that would caution against the awarding of unsupervised visitation. For example, Maryland law provides: "If it is in the best interest of the child, the court may approve a supervised visitation arrangement that assures the safety and the physiological, psychological, and emotional well-being of the child."
Child custody can become particularly problematic if one of the parents needs to move far away from the other spouse. In such cases, the courts consider what to do in the best interest of the children (iStock).
Can a court require parents to attend counseling sessions before awarding custody?
In some states, courts can require parents to attend counseling sessions before awarding custody. Courts may also require the counselors to submit reports of the progress (or lack thereof) of the counseling sessions regarding custody arrangements.
Can courts modify custody arrangements?
Yes, and courts frequently do so depending upon changed circumstances amongst the parents. In order for a court to change custody, in most states the court must find that there has been a "material change in circumstances." This means that, for example, a custodial parent has taken up residence with a known drug abuser. That could constitute a "material change in circumstances" that could allow the noncustodial parent the right to regain custody.
What if one parent refuses another parent's visitation rights?
If one parent denies another parent's visitation rights, a court can require additional visitation time, impose further conditions to prevent future violations, and assess costs and attorney fees against the parent who thwarts reasonable visitation rights.
Can grandparents have visitation rights?
Many states have grandparent visitation statutes that provide for reasonable visitation by grandparents. However, the U.S. Supreme Court has ruled that a court cannot require grandparent visitation upon the objection of parents who are considered fit.