Should I Leave With the Children?

Brian Arnold of Arnold & Waddsworth

By Brian Arnold & Lauren Schultz
 
It is not uncommon to have consultations for divorce involving children where a potential client asks, “Can I take the children and move to another state?” This question is significant when it comes to Utah divorces because there are different considerations that must be reviewed when informing a client whether they can or should move out of state with the children.

Before the Divorce Action is Filed
If your client intends to move before a divorce action is filed, Utah relocation law will only come into consideration for jurisdictional purposes. In order for a state to have jurisdiction over a divorce action there are two questions that must be answered affirmatively; (1) does the court have jurisdiction over the Parties, and, (2) does the court have jurisdiction over the children. In Utah the court has jurisdiction over the Parties if they are bona fide residents for at least three months. (Utah Code Ann. § 30-3-1) and Weiss v. Weiss, 111 Utah 353, 179 P.2d 1005 (1947). However, jurisdiction over the children is controlled by Utah Code Ann. § 78B-13-201 which states that the home state of the child or children is the last place the children resided for six months. While there are exceptions to these rules, in most instances the court will strictly comply with these requirements.

If your client wants to leave the state before an action is commenced they should know the possible ramifications as it pertains to jurisdiction for their divorce action. They may still have to litigate the case in Utah and/or move back.

After a Divorce Action is Filed

Once a divorce action is filed, Utah Code Ann. § 30-3-37 comes into effect. The statute has several requirements that must be met in order for one parent to be able to move with the child or children. The requirements include: giving written notice of their intended move to the other parent at least 60 days before the relocation which includes parent time provisions outlined in the statute or agreed upon parent time provisions, and a statement that neither parent will interfere with the other parent’s parental rights. After written notice is given either party may request a hearing to determine if the parent can move with the children more than 150 miles away from the other parent. In the hearing the court will determine if the move is in the best interest of the children. The court will evaluate the statutory requirements for best interest and other factors it deems relevant. The court will usually consider the factors contained in the Code of Judicial Administration under 4-903. One of the keys factors will be the current custody arrangement or the history of the custody and who has been the primary caretaker of the children in the past. See Gullickson v. Gullickson, 2013 UT App 83, 301 P.3d 1011(Utah Ct. App. 2013).

Other Considerations
Employment opportunities, new spouses, threat of or actual abuse and better opportunities are usually the considerations that surround a request to relocate. The financial considerations of the cost of parent time will also be considered as a relevant factor when relocation is at issue. There is not much case law in Utah concerning relocation. These hearings are usually proffered and therefore affidavits and memorandums are essential in advocating for your client. There are also emotional and psychological considerations when it comes to relocation for the children.

One good article to read and review is “Relocation, Research, and Forensic Evaluation” by William G. Austin. There are two parts to this article which have been cited and referenced by child custody evaluators statewide. The article discusses relocation for children of divorce and the risk factors for long-term behavioral outcomes. The article also provides tools and considerations for child custody evaluators to consider when determining these relocation cases.

It would be helpful if the legislature would make clear rules regarding relocation. For instance, the legislature could include language for the Parties who have joint or sole custody of the children. As always there is room for improvement and the legislature should review such statutes to help clarify and provide guidance on the best interest of children in relocation cases.

In sum, the hearings that revolve around relocation are important to any divorce case. Many divorce cases are won at the hearing on relocation. If either Party is allowed to move with the children, the chances of getting the Party or children to move back to Utah is low as the children start to make new connections, begin school and establish new surroundings which make custody evaluators and courts reluctant to pull children away from their new home.

Therefore, in relocation cases it is important to advocate zealously for your client.

 

For more information, visit: http://arnoldwadsworth.com .