Mark L. Goldstein, Ph.D., Jay Grodner, J.D. and Honorable Judge Edward Jordan
With the increasing mobility in today’s society, custody evaluators are increasingly asked to make recommendations on removal/relocation cases. While several states and countries have statutes for removal cases, other jurisdictions have no specific statutes addressing relocation. In some areas, the residential parent is free to move, while in other municipalities, removal is rarely granted.
The New York and Canadian high courts have held that a custodial parent’s move usually constitutes a change of circumstances, which necessitates a re-examination of the best interests of the child doctrine. In the Tropea and Browner decisions in New York, the Court decided that the reasons for the move were an important factor and delineated factors to be considered. By contrast, the Canadian court in Gordon vs. Goertz prohibited consideration of such factors. In the Burgess case in California, the high Court suggested that relocation by the custodial parent does not constitute a change in circumstances, but stressed the need to foster a continued relationship with both parents and to consider the geographical distance of the move. In the Eckhart decision in Illinois, the Supreme Court identified specific factors the Court is to consider in determining best interest in a removal situation. In Tennessee, the high Court ruled that a custodial parent could relocate, as long as his or her motive for moving was not vindictive. As the above cases illustrate, there is great variability from one judicial district to the next in how the Court handles removal cases.
For evaluators, it is essential to be aware of the statute for the judicial district in which the evaluation is being conducted, as well as an awareness of the interpretation of the statute by the particular judge and Courthouse. It is also essential for evaluators to have a thorough understanding of developmental psychology (particularly attachment theory and developmental needs). In addition, evaluators need assessment skills that cover the span of children from infancy to adolescence.
Evaluators should also consider several factors in relocation cases. First, will the move have a likelihood of enhancing the general quality of life for the child? The Eckhart decision suggested that the move should have a direct benefit to the child, not just the custodial parent. Although the custodial parent may benefit by moving for an improved job, or for school or remarriage or to be closer to their family of origin, is there a direct benefit to the child? What are the possible losses to the child? Second, does the residential parent have a good motive in moving? Third, does the non-custodial parent have a good motive in resisting the move? Fourth, can a reasonable and realistic visitation schedule be reached if removal is granted? Is the move one hour away or to another country? It is often useful for evaluators to have both parents develop plans for visitation, so that the evaluator can assess whether the parents have considered individual and developmental needs of the child.
It is also important to consider the child’s quality of relationships with close family members affected by relocation, as well as the quality of peer relationships and involvement in activities. The special needs of the child (medical, educational, recreational) should also be assessed. Concomitantly, what is the child’s flexibility in adapting to new situations? How strong is the child’s attachment to each parent? What are the child’s wishes? At what age should the child’s wishes be considered? Does the child have valid reasons for resisting or supporting the move?
Finally, the evaluator needs to assess the usual factors that one would address in any custody case, including the mental health of each parent, the evidence of substance abuse/dependence, the evidence of abuse, the evidence of domestic violence, etc.
REFERENCES
Austin, William. Relocation Law and the Threshold of Harm: Integrating Legal and Behavioral Perspectives, Family Law Quarterly, Spring 2000.
Gindes, Marion. The Psychological Effects of Relocation for Children of Divorce, Journal of the American Academy of Matrimonial Lawyers, 1998.
Haymond, Robert. Evaluating for Relocation, The Custody Newsletter, Fall, 1994.
Rotman, Arline, Tompkins, Robert, Schawartz, Lita and Samuels, M. Dee. Reconciling Parents’ and Children’s Interests in Relocation, Family and Conciliation Courts Review, July 2000.
Shear, Leslie. Life Stories, Doctrines and Decision Making, Family and Conciliation Courts Review, October 1996.
Wallerstein, Judith and Tanke, Tony. To Move or not to Move: Psychological and Legal Considerations in the Relocation of Children following Divorce, Family Law Quarterly, Summer, 1996.
Warshak, Richard. Social Science and Children’s Best Interests in Relocation Cases: Burgess Revisited, Family Law Quarterly, Spring, 2000.
Weissman, Herbert. When a Custodial Parent Seeks to Move Away, American Journal of Family Therapy, 1994.