One of the most troublesome and contentious issues co-parents face after a divorce or child custody agreement is a desire to geographically relocate the child by one of the parents. And we are not talking about moving with a child to a new neighborhood, generally relocation means moving to a new city, state, or even country. Obviously this is extremely problematic when both parents play a significant role in the child’s life, because such a relocation can basically remove a parent from the child’s life.
In most situations its hard to imagine such a relocation is in the best interests of the children. In fact, Missouri law requires all custody judgments or agreements to contain a clause about the requirements a parent must follow in order to relocate with a child if there is a valid child custody judgment. The Men’s Center for Domestic Resolution in Cass County, MO is knowledgeable with relocation issues and can help.
Missouri State Statute Regarding Relocation
The Missouri state statute dealing with relocation is Mo. Rev. Stat. 452.377. “For the purposes of this [statute], “relocate” or “relocation” means a change in the principal residence of a child for a period of ninety days or more, but does not include a temporary absence from the principal residence.” In other words, a relocation is only a relocation if the intent is to permanently move there for over 90 days.
Section 2 of the statute describes the notice that must be given to all parties with custody of the child or visitation rights. The statute states that notice must be given in writing at least 60 days prior to the date of the proposed relocation. The statute contains very strict requirements for this notice that must be followed. I have seen many instances when the notice to relocate has been found invalid because it did not adhere precisely to the requirements. The statutory requirements for the written notice to relocate a child in Missouri are as follows:
1.) The specific address and mailing address for the intended new residence;
2.) The home telephone number of the new residence;
3.) The date of the intended relocation;
4.) A statement of the rationale and the necessity of the proposed relocation of the child;
5.) A proposed revision to the parenting plan and custody schedule;
6.) A statement that the party has a right to motion the court according to this section of the state statute, seeking a ruling to stop the relocation, with an accompanying affidavit describing in good faith why the party opposes the relocation, within thirty days of receipt of the notice to relocate from the relocating parent.
One of the primary exceptions to the requirement of notice to relocate is when the child could be in danger. This is typical in domestic abuse cases when one parent is relocating to conceal her location from the other parent because she fears for the child’s or her own safety. Missouri law recognizes these situations and waives the notice requirement in exceptional situations where the parent or child “would be unreasonably placed at risk by the disclosure of the required identifying information concerning a proposed relocation of the child…”
When one parent intends to relocate or actually relocates the child without giving notice to the other parent, Missouri courts take this very seriously. According to the statute, courts view this failure to give notice as: a factor in determining whether custody and visitation should be modified; a reason to order the child returned; or a reason to make the relocating party pay the other parent’s reasonable expenses and attorney’s fees incurred by opposing the relocation.
Missouri Caselaw Pertaining to Child Relocation
In 2004, the Southern District of the Missouri Court of Appeals decided the child custody relocation case Melton v. Collins. In the case, although the parties were never married they shared joint legal custody of a son. The mother was awarded with primary physical custody and her address was used as the primary physical address. Under Missouri law, the primary physical address is the address used for mailing and educational purposes for the child.
In September of 2001, when the child was approximately 9 years old, the mother sent the father a letter informing him that she had relocated the child 50 miles away to Cape Girardeau, Missouri. However, the letter did not meet all of the requirements of a notice to relocate required by Missouri law. The mother also began to home school the child, whereas he had previously been a student in public schools. In response the father filed a motion to modify the custody judgment with the court.
The trial court decided that the mother’s actions in relocating the child without proper notice was, “irresponsible parenting, unfair to [father]” and in violation of the state statute. And although a parent does have a right to home school their child, the mother’s “past actions fully disregard[ed] and circumvent[ed] [Father’s] rights … to participate in education decisions regarding the minor child.” And, the mother “in no way attempted to discuss the home schooling of [the child with the father] prior to beginning same and has failed to keep [Father] updated on [the son’s] educational status or progress.’
A motion to modify in Missouri will only be granted by the court if there is a substantial and continuing change in circumstances. In response to the father’s motion to modify, the court agreed there had been a substantial and continuing change in circumstances which necessitated a modification of the original custody judgment. The court awarded both parents joint legal and physical custody of the son, but gave primary physical custody to the father, and granted the mother visitation. The mother appealed the trial court’s decision.
The appeals court agreed with the trial court. First, the mother did not notify the father of the relocation until the mother had already moved the child to Cape Girardeau. Therefore, the mother failed to give the father the required 60 day notice prior to relocation. Further, the letter the mother sent was not via certified mail.
Relocation of your child is a big deal, and you should not standby and do nothing if it appears the other parent might relocate with your child. Even if the other parent begins a relationship with someone elsewhere, or is offered a promotion elsewhere, both of those are no reason to move a child. Missouri views 50/50 custody, and joint legal and physical custody as in the best interests, absent exceptional circumstances. As a father, it is important to fight for your right to parent your child. These issues are not just about you, research shows, and the Missouri legistlature agrees, it is in the child's best interests for both parents to have a meaningful relationship with a child.
If you are a father with an ex trying to relocate your child please call us at 816-287-1530 for a consultation. If you do not call our office, please call another qualified attorney.
Yours truly,
Rob Davis, Attorney at Law
Comments