Moving Away from Certainty: Using Mediation to Avoid Unpredictable Outcomes in Relocation Disputes Involving Joint Physical Custody

IntroductionIn Bleak House, Charles Dickens's narrator remarked that any honorable practitioner in the Court of Chancery1 should warn clients, "Suffer any wrong that can be done to you, rather than come here!"2 Indeed, when the courts are asked to rule on relocation3 cases involving child custody, the results can be harsh and unpredictable, especially when the custodial arrangement allowed both parents to play equal roles in raising their children.4 We live in an increasingly mobile society in which, by the mid-1990s, one in five adults changed residences each year.5 Additionally, the realities of the current labor market require that adults be able and willing to travel long distances to secure employment.6 When one divorced parent decides to move out of state or far from the other parent, a previously established joint physical custody arrangement often becomes untenable.7 The party seeking to relocate must either negotiate with the other custodian to alter the custody agreement or seek a remedy from the courts.8When adjudicating relocation cases, the family courts, in applying the "best interests of the child" standard, must balance one parent's ability to continue a close parent-child relationship with the other parent's ability to seek economic and emotional benefits in a new domicile, which may benefit the child as well.9 This Note focuses on the tests used by family courts to decide relocation cases in which both parents exercise joint physical custody over the child.10 The family courts face additional challenges when applying the best interests of the child standard to these cases, as both parents may have spent nearly equal amounts of time caring for the child and therefore would be equally qualified to continue raising the child.* 11Part I of this Note compares the variations on the best interests of the child standard that family courts of several states used to adjudicate relocation disputes.12 This Part demonstrates how judges possess far more discretion when resolving joint physical custody cases than sole physical custody cases, making the outcomes of the former less predictable for litigants.13 Part II explains that the family courts, when applying their broad discretion to resolve joint custody disputes, often must choose one parent to receive sole physical custody, substantially curtailing the other parent's rights to raise the child.14 Alternatively, the judge may deny a parent the ability to relocate with the child, forcing that parent to choose between retaining custody of the child and enjoying the proposed benefits of relocation.15 Part HI presents various alternative means of dispute resolution that allow parents to avoid an absolute loss of custody through compromise, mitigating the vicissitudes and emotional trauma of adversarial litigation.16Finally, Section IV.A argues that mediation, in which an expert helps the parents devise their own solution to the relocation issue, offers the best opportunity to resolve relocation disputes in a manner agreeable to both joint physical custodians.17 Section IV.B notes that if the parents utterly fail to compromise in altering or maintaining their parenting plan, a neutral arbiter must then decide the case.18 In such a situation, a family court judge, given broad discretion to act in die child's best interests, should rely on the report of a guardian ad litem ("GAL") to decide with whom the child should reside.19I. The Best Interests of the ChildIn all relocation cases, family courts apply the best interests of the child standard to decide if the child may relocate.20 The precise formulation of this standard, however, varies by jurisdiction and whether the parents exercise sole or joint physical custody.21 Although courts will not allow a parent to relocate with a child if it is against the child's best interests,22 courts may apply a presumption in favor of one parent23 or analyze the issue using lists of factors specific to that jurisdiction and type of custody. …