When Might a Parent Be Able to Relocate With a Child?  (part 2 of a 2 part series on relocation)

Proposed legislation on relocation (found in HB 1774) does not change current law regarding the way in which courts evaluate a relocation request.  If a hearing is held on the issue of relocation, the parent seeking permission to relocate bears the initial burden of demonstrating by a preponderance of the evidence (which means “more probably than not”) that: (a) the relocation is for a legitimate purpose; and (b) the proposed relocation is reasonable in light of that purpose.”  RSA 461-A:12, V. Once that burden is met, “the burden shifts to the other parent to prove, by a preponderance of the evidence that the proposed relocation is not in the best interest of the child.”  RSA 461-A:12, VI.

The “legitimate purpose” prong is not typically difficult to meet, though there is no clear definition of what constitutes a legitimate purpose.  Some examples of a legitimate purpose include pursuing a significant employment opportunity, moving closer to extended family, moving to enhance educational opportunities for the parent or child or in the case of remarriage, moving to join the new spouse where the spouse cannot relocate.  Similarly, there is limited guidance on what does not constitute a legitimate purpose: improper motives, such as a vindictive desire to interfere in the relationship between the other parent and the children;  or moving to avoid ongoing interaction with the other parent.  A relocation “motivated by a legitimate purpose” should be considered reasonable unless its purpose is shown to be substantially achievable without moving, or by moving to a location that is substantially less disruptive of the other parent’s relationship to the child.”

Once a parent meets his or her initial burden under RSA 461-A:12, V, the burden shifts to the other parent to demonstrate that the proposed relocation is not in the best interest of the child. RSA 461-A:12, VI.  Even if the parent who wishes to relocate has a strong case, the Court may not allow the relocation if it is not in a child’s best interest.  In making that determination, the Court will consider the following factors:

(1) each parent’s reasons for seeking or opposing the move; (2) the quality of the relationships between the child and the custodial and noncustodial parents; (3) the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent; (4) the degree to which the custodial parents’ and child’s lives may be enhanced economically, emotionally, and educationally by the move; (5) the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements; (6) any negative impact from continued or exacerbated hostility between the custodial and noncustodial parents; and (7) the effect that the move may have on any extended family relations.

None of the above factors are dispositive and the Court will consider other factors unique to the particular case.  For example, a child may have unique health or educational needs that cannot be met without relocation.  Educational needs may include those that may assist a child with special needs as well as those which may enhance the life of a child who has special talents.

If both parents are actively involved in the child’s life, it will be harder to relocate.  If one parent is minimally involved, then it will be easier for the other parent to relocate. The Court will also consider the extent to which the relocating parent is committed to preserving the relationship between the child and the other parent. It is important to gather evidence regarding the benefits of a new community, school, or living arrangement.  The legal process can take some time, in certain cases up to a year depending upon the issues, whether a guardian ad litem needs to become involved, and court availability.  Thus, it is in the family’s interests to try to resolve the issue through mediation or other dispute resolution.

About the Author: Judith A. Fairclough

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