September 24, 2009

New Case Law – Can I move with my child?

A common question that new clients come to my office is with is either can I move with the children or my ex-spouse has told me that she is going to move with the children and what can I do?  Child custody and/or parenting time modification matters often revolve around relocation issues.  In deciding these cases, the court will most frequently rely on the opinion of a custody and parenting time evaluator. 

On September 23rd, the Oregon Court of Appeals overturned the trial court on a relocation request by a custodial parent.  The facts of the case are as follows:  Father and Mother have one child, who is currently 9 years old.  They lived in Klamath Falls.  The parents split up about 8 months after the child was born, and agreed on a parenting plan under which Father received approximately 45% of the parenting time.  Shortly thereafter, Father married and Mother began living with her current husband, Taylor.  About three years ago, Father moved to Roseburg, and, as a result of the move, his parenting time decreased to 27%.  Around the same time, Taylor was given a job opportunity in Chicago.  Mother decided to relocate to Chicago with Taylor.  Mother argued to the trial court that it was in the child’s best interest to also relocate as the child had a strong bond with Taylor, Father had already moved and reduced his role, and that her relationship with Taylor would end if she could not move. 

A custody and parenting time evaluation was conducted.  As a point of legal technicality, Father initiated his case as a request for a change in custody, but then dismissed that claim, leaving the only issue at trial as a modification of the parenting plan.  This was a strategic move, as the burden in a modification of parenting time matter is only what is in the child’s best interest.

The trial court decided that Mother should be allowed to relocate with the child.  The court of appeals reversed the decision.  This has become a regular trend in relocation cases.  The court of appeals based its opinion on the fact that the relocation would harm the child’s relationship with Father, who would lose his frequent and regular parenting time. 

In discussing relocation matters, a parent should consider the following:  1. It is very likely that the court of appeals will overturn trial court decisions on relocation matters; 2. Trial courts often decide in favor of relocation despite this fact; and 3.  The child being allowed to move and then being brought back to Oregon is hard on everyone in the family.  It is crucial to have both competent trial and appellate counsel when considering how to either relocate or deal with a relocation issue.   A good attorney can help a parent put together a strong case for or against relocation and address how to best manage the issues with relation to the child.

For more information on relocation issues or on family law appellate issues, please contact Stephens & Margolin LLP 

The entire appellate opinion in Herinckx and Matejsek can be found here: