A Moving Case for Staying Put
By David N. Hofstein, Ellen Goldberg Weiner, and Scott J.G. Finger
Opposing relocation at trial.
First Step—The Law
Although the facts will be critical, the first step is to understand
the statutory and case-law background of your jurisdiction. Only
after the law is understood can the facts be placed into context.
Presumptions can be determinative for or against relocation, what
relevant weight is given to those presumptions by courts in your
area, and which party bears the burden of proof? For example, in
your court, the child’s best interests may be considered
closely aligned with the custodial parent’s interests. In
other courts, the emphasis may be on maintaining meaningful substitute
custody arrangements with the nonrelocating parent. For a helpful
discussion of these various presumptions, see Baures v. Lewis,
167 N.J. 91, 770 A.2d 214 (2001), and Bates v. Tesar,
81 S.W.3d 411 (Tex. Civ. App. 2002, no petition).
The stage of custody during which the relocation issue develops
also may be relevant. If no custody order has yet been entered,
the standards applied by the court may be very different than if
one parent has already been awarded primary custody. Because relocation
cases are so fact- specific, it is particularly important to understand
the approach utilized by your particular judge and the county in
which he or she presides. Now that most jurisdictions have legal
periodicals and computer databases covering local decisions, this
task has become much easier.
Psychological Support
After understanding the law, and before turning to the facts,
review relevant psychological research. Perhaps the most cited
psychological commentator in the area of relocation and its effects
on children is Professor Judith S. Wallerstein. See, for example, In
re Marriage of Burgess, 13 Cal. 4th 25, 913 P.2d 473, 51 Cal.
Rptr. 2d 444 (1996), and Stout v. Stout, 560 N.W.2d 903
(N.D. 1997). (Please note: The authors neither advocate nor criticize
Dr. Wallerstein’s work, but merely address the application
of these studies to a relocation matter.)
Wallerstein’s work has been described as presenting the
view that “what is good for the custodial parent is good
for the child.” Baures v. Lewis, 167 N.J. at 106,
770 A.2d at 223. In particular, Wallerstein connects the psychological
adjustment of the custodial parent to that of the child and concludes
that there is no evidence that “the frequency of visiting
or amount of time spent with the noncustodial parent over the child’s
growing-up years is significantly related to good outcome in the
child or the adolescent.” Judith S. Wallerstein and Tony
J. Tanke, “To Move or Not to Move: Psychological and Legal
Considerations in the Relocation of Children Following Divorce,” 30 Fam.
L.Q. 305 (1996).
Wallerstein’s work, however, while oft cited, has its critics.
In opposing relocation, it is important to be aware of Wallerstein’s
studies and to be prepared to present the opposing view as addressed
in social science research and scholarly articles. For example,
in the recent case of Cisneros v. Dingbaum, 2005 WL 697577
(Texas), the testifying experts criticized Wallerstein’s
work as being based on old psychological research, being gender
biased, and considered by the “vast majority of researchers
in the field” to have overreached in its conclusions. Additional
critiques or opposing views have been presented in James, “Custody
Relocation Law in Pennsylvania: Time to Revisit and Revise Gruber
v. Gruber,” 107 Dick L. Rev. 45, 56–60
(2002); Richard A. Warshak, “Social Science and Children’s
Best Interests in Relocation Cases: Burgess Revisited,” 34 Fam.
L.Q. 83, 84–87 (2000); Marion Grindes, “The Psychological
Effects of Relocation for Children of Divorce,” 10 J.
Am. Acad. Matrim. Law. 119, 132 (1998); and Joan B. Kelly & Michael
E. Lamp, “Using Child Development Research to Make Appropriate
Custody and Access Decisions for Young Children,” 38 Fam. & Conciliation
Cts. Rev. 297, 309 (2000), among other articles and studies.
In addition to understanding the relevant psychological and social
science studies, and if funds permit, a custody evaluation, whether
court ordered, by mutual agreement, or independently obtained,
may prove helpful. This psychological expert can focus on the strength
of the relationship between the nonrelocating parent and the child,
the child’s connections to the geographic area (e.g., school,
friends, or relatives living in close proximity), and other relevant
factors that could affect the court’s decision (for example,
if the child has difficulty adapting to new situations or in making
friends).
Having this psychological support could alter the court’s
perception in the nonrelocating parent’s favor. For instance,
instead of being viewed as obstructive, the nonrelocating parent
could be viewed as interested in putting the child’s interests
first (particularly where the relocating parent is moving to meet
his or her own needs and desires).
Highlight the Facts
The third and often most critical component in opposing a relocation
request is organizing the facts to support the client’s contention
that relocation does not serve the child’s best interests.
In deciding a relocation case, the court is engaged in a balancing
test: weighing the relative needs of each parent to succeed as
individuals, the needs of the child to grow up in as normal and
stable an environment as possible, and the needs of each parent
to maintain a relationship with the child. See, for example, Gruber
v. Gruber, 400 Pa. Super. 174, 583 A.2d 434 (1990), setting
out a three-prong test for assessing these competing needs. Facts
should be presented in a manner that highlights how they affect
the relevant prong or test being considered by the court. If warranted
by the circumstances, some relevant facts to highlight include:
1. The strong bond between the nonrelocating parent and
the child. It will be essential to demonstrate that
a strong bond already exists between the nonrelocating party
and the child. Otherwise, the parent’s motive in resisting
the move will be suspect. To show this bond, document activities
that the parent and child do together on a frequent and consistent
basis. This can be anything from coaching sports, driving the
school car-pool, consistently assisting with homework, and taking
part in extracurricular activities, to jointly participating
in religious services. The emphasis should be on regularity and
why these activities cannot be replicated if the child relocates.
If the contact is frequent, prepare a schedule showing the extent
of that contact, including the level of participation in the
child’s activities. Or present an actual calendar documenting
the level of involvement of the nonrelocating parent.
2. If the move is intended to interfere with the parent-child
relationship, establish that for the court. A parent’s
decision to move primarily to interfere with the other parent’s
relationship with the children is strongly disapproved of by
courts. See Leach v. Santiago, 20 A.D.3d 715, 798 N.Y.S.2d
242 (2005). Although it may be difficult to show that the relocating
parent is in some part motivated by a desire to keep the children
away from the nonrelocating parent, it will be helpful to present
any e-mails, letters, or other communications in which the relocating
parent has attempted to alienate the children. Providing examples
of instances in which the relocating parent has denied the other
parent’s reasonable requests for additional custodial time,
as was the case in Santiago, may demonstrate that the proposed
relocation is intended to keep the nonrelocating parent away
from the children and that the relocating parent certainly will
not facilitate a continued relationship with the other parent.
3. Show that a substitute visitation schedule is not feasible. Present
evidence of the difficulty in constructing a realistic visitation
schedule for the nonrelocating parent. Where there are limited
financial resources, demonstrate that, as a result of the costs
associated with the required travel and accommodations to be incurred
by the nonrelocating parent, your client would be unable to pay
for both child support and the additional costs and might, therefore,
have to forgo visitation rights.
Examine the child’s activities to determine if they lend
themselves to the proposed alternate visitation schedule. If the
child will have to miss a favorite activity, such as weekend basketball,
soccer, or scouting to travel or be in the nonrelocating parent’s
custody, point that out to the court. Demonstrate the losses the
child will incur by having to relocate and be subject to the substitute
visitation schedule, particularly losses that would not be suffered
if relocation is denied.
In this post 9/11 era, it also is appropriate to share with the
court the logistical difficulties of alternative travel arrangements,
such as data regarding the amount of travel time from one parent’s
home to the other, particularly if air travel is required. Depending
on the ages of the children, additional evidence might include
the relevant airline’s policy regarding unaccompanied minors.
With this approach, the practitioner will present both the advantages
of the current schedule and the disadvantages of relocating.
4. Point out any instability or uncertainty with the relocating
parent. Where the nonrelocating parent has consistently
provided a stable environment and the parent who desires to move
has had fluctuating living arrangements or involvement in volatile
relationships, the court may favor the nonrelocating parent.
See, for example, Tener v. Tener-Tucker, 2005-Ohio-3892,
Ohio App. 12 Dist., WL 1798273 (2005). In addition, where the
relocating parent cannot provide proof of a stable living situation
and at least comparable accommodations to the child’s current
situation, the balance will likely again weigh against relocation.
To challenge the relocating parent’s assertion that he or
she has the ability to maintain a stable living situation and obtain
adequate employment, demonstrate either that the relocating parent
has failed to “do his or her homework” or that reasonable
accommodations do not exist in the proposed community. Question
the relocating parent as to the existence of any formal employment
contracts, leases, contact with any real estate agents, and suitable
day-care facilities, etc. When there is an issue as to the viability
of employment opportunities that will provide sufficient income
for both the parent and children, it may be helpful to bring in
a Qualified Rehabilitative Consultant (QRC) as discussed in the
Separated Parenting Access & Resource Center’s article, “Fighting
Relocation with Children,” cited at www.deltabravo.net/custody/relocation.php.
5. Assess the benefits of the relative schools. Where
the child performs well academically in the current school and
there is reason to believe that he or she will not perform as well
academically if relocation is allowed, the court may again be reluctant
to grant relocation. In such a case, it is helpful to have report
cards and, if possible, the testimony of teachers and friends.
As many school authorities are reluctant to allow their teachers
to testify without a subpoena (and, even if they do testify, they
may be hostile), records should be obtained. If the child has special
needs, including being gifted, emphasize that the current location
is best-suited to meet those needs, including the proximity of
doctors, special schools, or other forms of assistance or relevant
programs. See Wild v. Wild, 13 Neb. App. 495, 696 N.W.2d
896 (2005).
Be prepared to present information comparing the strengths of
the current with the proposed school. In addition consider hiring
educational experts to testify.
6. Demonstrate the child’s strong ties to family
and friends in the current location. The effect that
relocation has on the relationship between the child and the
noncustodial parent clearly is a major consideration in any relocation
analysis. However, other relationships also will be considered
in the ultimate decision. In Brown v. Brown, 260 Neb.
954; 198, 621 N.W.2d 270 (2000), the court believed that it would “be
remiss not to consider the relationship of children to younger
siblings.” This is especially true in those jurisdictions
where there is a presumption against dividing siblings. Where
a strong relationship is found (between siblings, grandparents,
or other extended relatives), it can weigh heavily against removal.
Thus, particularly while the relocation petition is pending,
advise your client to maintain those relationships with extended
family and others.
7. Highlight any safety issues with the proposed relocation. Where
one parent expresses a desire to relocate with a child to what
might be perceived as an unsafe living situation, courts may be
reluctant to approve relocation. In Racsko v. Racsko,
91 Conn. App. 315, 881 A.2d 460 (2005), the court rejected a mother’s
petition to relocate the children to Israel due to the unsafe conditions
in Israel at the time. The court reasoned that, despite the cultural
and educational opportunities Israel presented, the dangers involved
with living in a country that had experienced recent terrorist
attacks sufficiently outweighed the benefits of the move.
One of the simplest tools to use in determining the relative safety
of a foreign locale is the United
States Department of State website, which lists travel warnings,
consular information sheets, and public announcements. Within the
United States, a wealth of data is available comparing different
geographic regions on everything from schools, crime, and cost
of living to weather.
Parting Words
Discovery, if available in your jurisdiction, can be a very useful
tool. The easiest approach is to seek from the other side all of
the reasons asserted to support relocation and all of the evidence,
including witnesses and documents, to be presented on the issue.
If time allows, this can be done through interrogatories, requests
for production of documents, and even requests for admissions.
(Even if the practitioner is required to obtain court approval
of discovery in custody cases, a cogent argument can be made for
obtaining that material.) If time does not allow, consider utilizing
a subpoena or notice to attend for the hearing.
At trial, ask the court’s permission to make an opening
statement, particularly if your reasons for objecting to relocation
are strong. This allows the court to become sensitive to your position
before hearing the relocating parent’s case in chief.
In the end, remember that in most jurisdictions the standard for
reversal is an abuse of discretion, and credibility findings are
not going to be overturned. For these reasons, it is critical to
remain focused on the issues that are relevant to your particular
judge. Know and apply the law and the psychological issues, but
it is the facts that will make or break the case.
The No-Go Checklist
1. Demonstrate the strength of the relationship between the nonrelocating
parent and the child.
- Use calendars and photographs.
2. Demonstrate that the move will interfere with the nonrelocating
parent’s consistent contact with the child.
- Illustrate the absence of a feasible alternate visitation schedule.
- Include figures to demonstrate high costs, the increased distance
between the two homes, etc.
- Provide a comparison between the time the child currently spends
with the nonrelocating parent and the inevitable potential decrease
resulting from the move.
3. Provide evidence of uncertainty associated with the move and
any instability in the new location.
4. Discredit the proposed future school and emphasize the strengths
of the current school.
5. Emphasize how the move will force the child to break strong
ties to the community and extended family.
- Show that the child has developed a stable routine, the interruption
of which will be detrimental to the child.
6. Use discovery to discredit the motives of the moving parent.
- Provide any written evidence to show a history of parental
alienation on the part of the relocating parent.
David N. Hofstein and Ellen Goldberg Weiner are shareholders in the domestic relation firm of Hofstein, Weiner & Levit, P.C. in Philadelphia, Pennsylvania. Mr. Hofstein also is an adjunct lecturer at Temple University’s James E. Beasley School of Law and previously served as co-chair of the CLE Committee of both the ABA Section of Family Law and the American Academy of Matrimonial Lawyers. Scott J.G. Finger joined the firm in September 2006.
Note
Published in Family Advocate, Volume 28, No. 4, Spring
2006. © 2006 by the American Bar Association. Reproduced with
permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any
means or stored in an electronic database or retrieval system without
the express written consent of the American Bar Association.
© Copyright 2009, American
Bar Association.
