Phone: 256-927-7490

Can I Move Away with my Child?

Dec 21

From time to time the case arises where a divorced parent with primary custody wants or needs to move, often leaving the non-custodial parent potentially miles away from his or her child. I have been asked on several occasions what procedures a parent must take to move, or prevent such a move.

Relocation, as it is legally known, is controlled by Alabama statutes found at Sections 30-3-160 to 169 in the Alabama code. As a consequence of these laws, every divorce decree or custody grant must have certain language instructing a parent on how to proceed with a possible relocation. Odds are, this language is in your divorce or custody Order, although many people have never noticed it.

Under the law, each parent who has either custody of a child or the right of visitation with a child must notify the other parent of any change in address or telephone number, or both, and of any change or proposed change of residence and/or telephone number the child. If there is to be a change of principal residence by a parent or a child, that parent must provide the following information to each other person who has custody or visitation rights: 1) The intended new residence, including the specific street address; 2) The new mailing address, if it is not the same as the street address; 3) The telephone number or numbers at such residence; 4) The name, address, and telephone number of the school to be attended by the child, if applicable; 5) The date of the intended change of residence of the child; 6) A statement of the specific reasons for the proposed change of principal residence of the child; 7) A proposal for a revised schedule of custody of or visitation with the child; and 8) Unless you are a member of the Armed Forces of the United States of America and are being transferred or relocated pursuant to a non-voluntary order of the government, a warning to the non-relocating parent that an objection to the relocation must be made within 30 days of receipt of the notice or the relocation will be permitted.

The law requires that you give this notice to the non-relocating parent by certified mail on or before the 45th day before the proposed change of principal residence. If you do not know and cannot reasonably become aware of such information in sufficient time to provide a 45-day notice, you must give such notice by certified mail not later than the 10th day after the date that you obtain information regarding the relocation.

After receiving notice, if the non-relocating party does not commence an action seeking a temporary or permanent order to prevent the change of principal residence of the child within 30 days after receipt of the change of principal residence is assumed to be authorized.

The law adds, however, that unless there has been a determination that the party objecting to the change of the child’s principal residence has been found to have committed domestic violence or child abuse, the court should presume that a change of principal residence of the child is not in the best interest of the child. This means that the parent seeking a change of principal residence of a child has the initial burden of proof on the issue. In other words, it falls on the relocating parent to convince the court that a move is in the child’s best interest.