WHAT FACTORS DOES THE COURT CONSIDER IN THE RELOCATION OF A CHILD?
The court will review specific questions and go to the primary statute in Kansas on custody determination. There is not a specific statute set aside to say, “Hey, if you’re going to want to move, we look at these factors.” But, it is the same statute in Kansas known as KSA-23-3203, which is labelled “factors considered in determination of child custody, residency and parenting time.” The court would look at those factors enumerated there, which consists of approximately seventeen to eighteen factors 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 generally would be each parent’s role and involvement with the minor child or children before and after separation. For example, you have a scenario where two parents live in the same geographical area for a few years, collectively, post-separation. Therefore, if they are living in the same geographical area and school district, one would hope both parents have been actively involved with the kids and their 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 very strong argument. I would tell any client that length of time frankly would matter, too. The longer that they had resided together in the same geographical area, and the longer that one parent had been actively involved in school, social life, and health care, the longer that status quo is in effect. This would help that client contesting the move.
On rare occasions, I have seen where someone will 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 taking 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, which would be the desire 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 amended specifically because it is hard to give a three-year-old a whole lot of credit in where they want to live or where they want to reside. Their decision could be based off of which parent lets them watch more television or gives them more cookies before they go to bed. However, notice how the statute does not state an age, it just says “of sufficient age and maturity.” In some cases, that child might be seven, and in another case, that child might need to be ten. Again, it is based on a case-by-case, and a child-by-child basis.
Other things that the court would look at statutorily would be the emotional and physical needs of the child. They would want to analyze whether or not they feel the child’s emotional and physical needs could still be adequately met by both parents, with that move interacting and taking place. Another thing that they would look at is what type of involvement that child or children has with their siblings or step-siblings, and other persons who may significantly affect the child’s best interest, such as teachers, tutors, care providers, and close friends.
As you are hopefully beginning to see here, it is a very broad picture the court would look at. Some other things we need to look at is the child’s adjustment to the surrounding home, school and community. Hypothetically, if there is a situation where a child had just recently moved to Kansas, and the parents got divorced and another parent wanted to move right away, obviously 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 then would 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 biggest 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 do consider requesting a move, they usually do it on a very good basis. Normally that is something along the lines of a different job or transfer opportunity, to where in that case, you would want to show that it is a substantial growth in income for the family, and therefore it 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 are you wanting 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 go 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 one factor takes preference or weight over the other. These are issues with many things in family law, especially in the state of Kansas, where a judge has a wide degree of discretion. Those are some of the factors a court would look at, among others. There are some other statutory factors, for example, like 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 said child and parent.
Say you have a situation where historically it has been very hard for one parent to co-parent with that 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 I do not feel like 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 that would really be relevant in a movie scenario would include the school and activity schedule of the child, the work schedule of the parties, the locations of the parties’ residences, and places of employment. There is a wide variety of potential real-world factors that a court could consider. There is no specific statute that says what and how many the court has to consider. 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.