WHAT FACTORS DOES THE COURT CONSIDER IN THE RELOCATION OF A CHILD?
The court will review specific questions and consult the primary Kansas statute on custody determination. There is no particular statute set aside to say, “Hey, if you want to move, we look at these factors.” But it is the same statute in Kansas, KSA-23-3203, which is labelled “factors considered in determination of child custody, residency and parenting time.” The court would look at the factors enumerated there, which number approximately 17-18 for clarity. They are not necessarily ranked or listed in any specific order, but those are the factors the court would look through.
Some of those would generally include each parent’s role and involvement with the minor child or children before and after separation. For example, you have a scenario in which two parents live in the same geographic area for a few years after separation. Therefore, if they live in the same geographic area and school district, one would hope that both parents have been actively involved in their kids' schooling.
In that scenario, if the parent contesting the move could come forward and say, “Hey, here’s all this evidence of how I’ve been involved in my child’s life, and equally as important, here’s how this move would affect my ability to be as involved as I have been.” That would be a powerful argument. I would tell any client that, frankly, the length of time would matter, too. The longer they had resided together in the same geographic area, and the longer one parent had been actively involved in school, social life, and health care, the longer the status quo persisted. This would help the client contest the move.
On rare occasions, I have seen someone finalize a divorce and move within two or three months. They decide they want to move, and in that case, that length of time does not help you. However, it does not mean that you have lost your case, because, in that situation, they would again look at the parents’ involvement in their kid’s life. That would be one factor. They would obviously look at all additional factors. Some of these are statutory and reflect the desires of the child’s parents. One says, “Hey, I want to move,” one says, “I don’t.” That would be a factor, because you both want different things. However, the next factor the court would consider would be the desires of the child or the children, assuming those children were of sufficient age and maturity. This statute was explicitly amended because it is hard to give a three-year-old much credit for where they want to live. Their decision could be based on which parent lets them watch more television or gives them more cookies before they go to bed. However, notice that the statute does not specify an age; it simply says “of sufficient age and maturity.” In some cases, that child might be seven, and in others, ten. Again, it is based on a case-by-case and a child-by-child basis.
Other things the court would consider under the statute include the child's emotional and physical needs. They would want to analyze whether they feel the child’s emotional and physical needs could still be adequately met by both parents, with that move taking place, and with interaction. Another thing they would look at is the type of involvement the child or children have with their siblings or step-siblings, and with other persons who may significantly affect the child’s best interests, such as teachers, tutors, care providers, and close friends.
As you are hopefully beginning to see here, the court would look at a comprehensive picture. Some other things we need to look at are the child’s adjustment to the surrounding home, school, and community. Hypothetically, if a child has just recently moved to Kansas, the parents have divorced, and the other parent wants to move right away, that child would not have adjusted well to the school and its community due to their short time in Kansas.
Contrast that with a situation where you have a child who is now thirteen years old, and the parent is asking to move. Even though that kid has grown up in this community, that factor would then count against a move. The person contesting the move would point to the evidence of, “This child is really well-adjusted in his community and environment, and it would not be in that child’s best interests to move the child.” One of the biggest things that is not expressly stated in the statute, but arguably one of the most significant factors a court looks at in these cases, is that you want to have a very legitimate reason for the move.
Obviously, if it is something where your move is as trivial as, “I’m tired of the hot Kansas summers, and I want to move somewhere cooler,” or something to that effect, the court probably would not give much deference to your request. More often than not, when parents consider requesting a move, they do so for a very good reason. Usually, that is something along the lines of a different job or transfer opportunity, where you would want to show that it represents substantial income growth for the family and therefore benefits the children.
Contrast that with a unilateral move, just from one state to the other, where there are no changes in benefit or income; therefore, you would have trouble justifying this move as well. The judge would likely ask, “Why do you want to move for a new job if you’re making the same income and have the same benefits? Why are you trying to uproot your kids, if that’s the only reason?” Some good reasons I have seen include moving to Kansas because of the marriage that brought them there, but all their family is somewhere else. Sometimes, once people get divorced, they realize, “Hey, I don’t want to be in this state where I really don’t know anybody, and all my family is back in northern Iowa,” or wherever, for that matter, and they want to relocate to that area.
That is usually a good reason. Again, it is all an analysis. It is not to say that that would necessarily win or lose the case on its own, because it is a multi-factor test. No single factor takes precedence over the others. These are issues with many aspects of family law, especially in Kansas, where judges have broad discretion. Those are among the factors a court would consider, among others. There are other statutory factors, for example, the willingness and ability of each parent to respect and appreciate the bond between the child and the other parent, and to allow for a continuing relationship between the child and the other parent.
Say you have a situation where, historically, it has been tough for one parent to co-parent with the other parent, get information, and actively raise a child together. Then that parent asks to move; obviously, if I am that parent who has had trouble accessing information and does not feel the other party has been supportive, I would use that as an argument. I would say, “Look, I’ve already had trouble getting information, co-parenting with this other spouse, and raising our children jointly, when they’ve only been 15 minutes away. I can only imagine the difficulty I would face if they uproot and move to a different state. I’ll probably never get information, and I probably won’t ever be involved in decisions for the kids.”
The ability to communicate is a specific statutory factor, in addition to the one I just mentioned. Statutory factors relevant to a movie scenario include the child's school and activity schedule, the parties' work schedules, the locations of the parties’ residences, and their places of employment. There is a wide variety of potential real-world factors that a court could consider. There is no specific statute that specifies what the court must consider or how many. The key point is, the judge has a lot of discretion there, so you need to give a convincing argument for why you would want to move, and if it is in the kids’ best interest to move, or if you are opposing it, why it is not in the best interest of the child.