Resolving Relocation Issues Pursuant to the ALI Family Dissolution Principles: Are Children Better Protected?

Resolving Relocation Issues Pursuant to the ALI Family Dissolution Principles: Are Children Better Protected?* I. INTRODUCTION In our increasingly mobile society,1 a number of factors may prompt a custodial parent to consider relocating after the divorce is final, including moving to be closer to family or other support persons,2 remarrying,3 fleeing an abusive situation,4 seeking a higherpaying job,5 or pursuing a new career.6 In virtually every case, a cus todial parent's relocation with the child will significantly disrupt the coparenting relationship that the parties have been following postdivorce. Notice of that relocation decision is often viewed by the noncustodial parent as a violation of the parties' coparenting agreement and as a threat to the noncustodial parent's relationship with the child. Objections to the relocation are often viewed by the custodial parent as attempts by the noncustodial parent to assert unwarranted control or to relitigate the custody decision. Tempers tend to flare in such circumstances, and the parties often resort to renewed litigation in the form of a petition to modify custody or a motion to prevent the relocation of the child. A relocation battle can be extremely traumatic for the child who is caught in the middle, particularly where the parties already engaged in a protracted custody fight at the time of the divorce. Yet that is the very type of case in which relocation is likely to trigger a new battle between the parents, with each parent presenting compelling arguments and claiming to be motivated by the child's best interests. Clearly, a protracted relocation dispute is not in the child's best interests. II. BACKGROUND Current law governing relocation decisions varies dramatically from state to state,7 often focusing on parental rights, explicitly or implicitly favoring either the custodial or noncustodial parent,8 at the expense of children's rights.9 States that place the burden on the relocating parent10 focus on the child's need for stability in the current custodial setting where the child is able to have frequent contact with both parents, especially when the non-relocating parent has been actively involved in parenting the child. States that place the burden on the non-relocating parent11 focus on the importance of stability in the relationship between the child and the primary custodial parent, the fact that the relocating parent has previously been determined to be the parent best suited to be the primary custodial parent, and the relocating parent's legitimate need to relocate. Each of these approaches presents a compelling argument both for and against relocating the child. In a perfect world, parents would always love each other and their children and would never divorce. In a less perfect world, following divorce, the parents would continue to put the children's interests first at all times, would coparent amicably, and would continue to live in close proximity and provide for frequent contact between the children and each parent. The world is not so perfect, however, and the reality is that primary custodial parents have differing motives for relocating, including compelling, important, legitimate, whimsical, and even vindictive motives. On the other hand, the non-relocating parent may have the same range of motivations in resisting the relocation. Focusing on parental rights and motivations leads to inconsistent outcomes and increased litigation. Even the scholars writing on the topic tend to take positions that favor12 or disfavor13 relocation. Courts have long recognized that relocation presents difficult issues for which there are not easy solutions.14 This observation is particularly true when the court sees the issue as being determined between the parties before the court, the parents. If, instead, the issue is presented as a determination of what outcome best serves the interests of the child,15 the results become more predictable and consistent, resulting in less litigation. …