During a divorce proceeding or after a Judgment has been entered establishing a custody plan, many clients ask “what happens if one of us wants to move?” The question of what to do when one parent wants to relocate the principal residence of the child either within or out the state of Missouri can arise in an initial custody determination and also in a modification proceeding. If there is an intent to relocate the principal residence of the child at the time the dissolution is pending, that intent is a factor to be considered in determining custody.
Section 452.377 of the Missouri Statutes sets forth the statutory procedure which must be followed when a parent seeks to relocate the residence of the child. The statute does not distinguish between relocation outside the state and intrastate moves. Therefore, the procedure for relocation must be followed any time a parent seeks to change the child’s principal residence, even if that change is within the same city or metropolitan area.
The statute requires the parent seeking to relocate the child to give 60 days’ advance notice of the proposed move to the other parent. The notice must be given via certified mail to the last known address of the other parent. Unless otherwise excused by the court, the notice must contain:
- The intended new residence, including the specific address and mailing address, if known, and if not known, the city.
- The home telephone number of the new residence, if known.
- The date of the intended move or proposed relocation.
- A brief statement of the specific reasons for the proposed relocation of a child, if applicable.
- A proposal for a revised schedule of custody or visitation with the child, if applicable.
Once notice is given, the burden falls upon the receiving parent to file a motion opposing relocation within 30 days following receipt of the notice. Failure to give adequate notice may result in imposition of attorney fees and costs, may subject the relocating parent to an order requiring return of the child to the jurisdiction of the court and may be a factor in determining whether custody and visitation should be modified.
As in all matters regarding custody of children, the best interest standard is applied to determine whether or not a parent is allowed to relocate with the child. If the best interests of the child demands, the court will allow relocation even though relocation will disadvantage or inconvenience the other parent’s contact with the child. Parents seeking to relocate should be cautioned, however, that since the adoption of Missouri’s preferential joint custody statute and policy, the relocating parent must have compelling reasons for relocating, and be able to prove that the move is in the best interests of the child.
In summary, absent consent of the non-relocating parent, there are two avenues for relocation provided by § 452.377: Non-court involved relocation, under which a party may move at the end of 60 days, unless an objection is filed within 30 days of a proper notification; and, court-involved relocation, under which the relocation is approved by the court following trial on any objections filed by the other parent. Missouri courts have held that a parent’s right to relocate with the child after the expiration of the 60 day period is absolute so long as no objection to relocation is filed within the 30 day time period. If relocation is properly made after the expiration of 60 days, that relocation cannot constitute the basis for modifying custody.