FOR DISCUSSION ONLY
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
WITH PREFATORY NOTE AND COMMENTS
Copyright 2008
By
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
The ideas and conclusions set forth in this draft, including the proposed statutory language and any comments or reporter’s notes, have not been passed upon by the National Conference of Commissioners on Uniform State Laws or the Drafting Committee. They do not necessarily reflect the views of the Conference and its Commissioners and the Drafting Committee and its Members and Reporter. Proposed statutory language may not be used to ascertain the intent or meaning of any promulgated final statutory proposal.
The Committee appointed by and representing the National Conference of Commissioners on Uniform State Laws in drafting this Act consists of the following individuals:
[ADDRESSES WILL BE INSERTED]
Lehrmann, Debra H., Chair Kindred, Kay P., Member Kurtz, Paul M. , Member Taylor - Jones, M. Gay, Member Robinson, Battle R., Member Ossen, Neal, Member Munson, Peter K., Member Gibson, David A., Member Biklen, David D., Member
Atkinson, Jeff, DePaul, Reporter, DePaul University College of Law, 3514 Riverside Drive, Wilmette, IL 60091 Wynn, James A., Division Chair Member Booth, Joseph W., ABA Advisor Barker, Ann, ABA Section Advisor
EX OFFICIO Martha Lee Walters, Oregon Supreme Court, 1163 State St., Salem, OR 97301-2563, President
Copies of this Act may be obtained from: NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS 211 E. Ontario Street, Suite 1300 Chicago, Illinois 60611 312/915-0195
UNIFORM RELOCATION OF CHILDREN ACT
PREFATORY NOTE SECTION 1. SHORT TITLE SECTION 2. DEFINITIONS SECTION 3. JURISDICTION SECTION 4. NOTICE SECTION 5. PERMISSION TO RELOCATE. SECTION 6. BURDEN OF PROOF SECTION 7. FACTORS CONSIDERED SECTION 8. REMEDIES SECTION 9. PRIORITY FOR HEARINGS SECTION 10. UNIFORMITY OF APPLICATION AND CONSTRUCTION SECTION 11. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL
COMMERCE ACT
SECTION 12. EFFECTIVE DATE
SECTION 13. REPEALS
SECTION 14. TRANSITIONAL PROVISION
At this early stage of the drafting process, the “Prefatory Notes” to the Uniform Relocation of Children Act will be comparatively brief. The Prefatory Notes and Comments are likely to be expanded, including with more citations, as the drafting process proceeds.
Comments will explain sections of the act, note possible alternate provisions, and make comparisons with existing law.
This draft was prepared by the reporter with input Judge Debra Lehrmann, chair of the Drafting Committee. Subsequent drafts will reflect input from other members of the Drafting Committee, in addition to advisors, observers, and others who offer comments on the draft.
Prior to preparing this draft, the reporter reviewed: (1) Current state statutes on the subject of relocation; (2) Case law on relocation; (3) the American Academy of Matrimonial Lawyers Proposed Model Relocation Act (1997); (4) the American Law Institute Principles of the Law of Family Dissolution, § 2.17 (2002); and (5) articles from mental health professionals, sociologists, and law professors on the subject of relocation.
Legal standards governing relocation of children in connection with divorce, separation, and parentage is an issue that is common to all states. Thirty-seven states have enacted statutes on the subject. The statutes range from quite brief (e.g., one sentence in Okl. Stat. § 10-19) to highly detailed (e.g., twenty sections with seventeen factors listed in Ala. Code §§ 30-3-160 – 30-3-169.10). For description of the law of relocation, see Jeff Atkinson, 1 Modern Child Custody Practice – Second Edition, Chapter 7 (LexisNexis 2008). An appendix to the chapter (§
7.14 presents the law in each state.
SECTION 1. SHORT TITLE. This [act] may be cited as the Uniform Relocation of Children Act.
“Relocation” is the term used in this act to describe moving a child out-of-state or a significant distance within a state. It is the term used in many states. See, e.g., Ariz. Rev. Stat. § 25-408; Colo. Rev. Stat. § 14-10-129; Fla. Stat. § 61-13(2)(d); Ga. Code § 19-9-1(a)(2)(C); Iowa Code § 598.21D; La. Rev. Stat. § 355.1(4); Maine Rev. Stat. tit. 19A, § 1653(14).
Alternate ways of phrasing the issue include: “removal” (750 Ill. Comp. Stat. 5/609(a)) and “Parent-Child Relationship Protection” (Ala. Code, § 30-3-160).
SECTION 2. DEFINITIONS. In this [act]:
The definitions of “child”, “court”, and “state” are the same as the definitions used in the Uniform Child Abduction Prevention Act.
SECTION 3. JURISDICTION.
Since the primary remedies under this act related to the custody of, or visitation with, a child, jurisdiction is governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), or by the Uniform Child Custody Jurisdiction Act (UCCJA) if a state has not adopted the UCCJEA.
When this act is used to establish or modify child support, order payment of a child’s travel expenses, or award attorney’s fees, other laws govern. Other laws would include statutes and case law regarding personal jurisdiction and the Uniform Interstate Family Support Act (UIFSA).
SECTION 4. NOTICE.
If any information specified in this section is not known at the time of the initial notice or if the information changes after the initial notice, the new information shall be provided when it is known.
(d) Notice under this section may be excused or modified by the court for good cause, including a finding by the court that 60 days notice is not possible under the circumstances or that the safety of the child or party will be endangered by the notice.
Of the thirty-seven states with relocation statutes (as of 2008), nineteen states have specific periods of time in which the party seeking to relocate must give notice in advance of the relocation. Those time periods are: 30 days (five states); 45 days (four states); 60 days (nine states); and 90 days (one state). Jeff Atkinson, 1 Modern Child Custody Practice — Second Edition, § 7-14 (LexisNexis 2008). 60 days was chosen as a reasonable time for a party to receive notice, contemplate options, discuss the situation with the other party, and obtain legal assistance, if necessary.
If state law gives rights to seek custody, visitation or parenting time to a partner of the same sex who is not related to the child by genetics or adoption, that partner is entitled to notice.
Although the act provides for 60 days notice, subparagraph (d) provides: “Notice under this section may be excused or modified by the court for good cause, including a finding by the court that 60 days notice is not possible under the circumstances or that the safety of the child or party will be endangered by the notice.”
The American Academy of Matrimonial Lawyers Proposed Model Relocation Act, § 204, provides that custody and visitation orders entered after the effective date of the act contain a notice to parties that they must notify other parties in the event they intent to change primary residence.
SECTION 5. PERMISSION TO RELOCATE.
This section requires that the child not be relocated without written approval of the person or persons entitled to notice or permission of the court. Permission of the court may be part of the initial order granting custody, or it could be part of an order entered by the court after notice and hearing regarding the request to relocate.
Section 5(a) is similar to La. Rev. Stat. § 9:355.5 (“A parent seeking to relocate the principal residence of a child shall not, absent consent, remove the child pending resolution of dispute, or final order of the court, unless the parent obtains a temporary order to do so pursuant to R.S. 9:355.10.” See also Nev. Rev. Stat. § 125C.200; N.J. Stat. § 9:2-2; N.D. Cent. Code § 14-09-07 (although the North Dakota rule does not apply if the noncustodial parent has not exercised visitation for one year or has moved to another state and is more than 50 miles from the residence of the custodial parent).
An alternative rule is to allow the relocation to take place unless the person receiving notice files an objection to relocation within a certain period of time, such as 30 days from notice. See, e.g., Ala. Code § 30-3-169; Mo. Rev. Stat. § 452.377(7); S.D. Cod. Laws § 25-4A19; Wash. Code § 26.09.500. In states that apply such a rule, it is common to require that the notice of intent to relocate include a statement of rights of the non-relocating party to file an objection to the move within a designated period of time.
Another approach is reflected in the Arizona statute, Ariz. Rev. Stat. § 25-408(D): “Within thirty days after notice is made the nonmoving parent may petition the court to prevent relocation of the child. After expiration of this time any petition or other application to prevent relocation of the child may be granted only on a showing of good cause. This subsection does not prohibit a parent who is seeking to relocate the child from petitioning the court for a hearing, on notice to the other parent, to determine the appropriateness of a relocation that may adversely affect the other parent's custody or parenting time rights.”
Subparagraph (b) is drawn from two state laws. Wash. Code § 26.09.540 provides: “A court may not restrict the right of a parent to relocate the child when the sole objection to the relocation is from a third party, unless that third party is entitled to residential time or visitation under a court order and has served as the primary residential care provider to the child for a substantial period of time during the thirty-six consecutive months preceding the intended relocation.” Ala. Code § 30-3-169.1(b) provides: “A non-parent entitled to visitation with a child may commence a proceeding to obtain a revised schedule of visitation, but may not object to the proposed change of principal residence of a child or seek a temporary or permanent order to prevent the change.”
SECTION 6. BURDEN OF PROOF.
In court proceedings to determine if a child may be relocated, both parties bear the burden of proof to determine whether relocation is in the best interests of the child. There shall be no presumption in favor of or against relocation of the child.
The burden of proof or presumption applicable to relocation cases are the most controversial aspect of the law regarding relocation.
This act takes a middle-ground approach and directs that both parties bear the burden of proof without a presumption in favor of or against the relocation. In the early years of relocation law, it was common to apply a presumption in favor of allowing the custodial parent to relocate with the child. In more recent years, many states placed the burden of proof on party seeking to move with the child, and courts generally emphasize that relocation cases need to be decided on the facts of each case rather than by strong presumptions for or against relocation.
The following table summarizes the law regarding presumptions and burden of proof on the issue of relocation as of 2008. States can be in more than one category, and there is some overlap between categories. Categories 1 and 2 reflect a default position in favor of allowing the custodial parent to relocate with the child. Categories 3 and 4 reflect a default position opposed to relocation. The level of burden of proof or presumption can vary within a category. States differ, for example, regarding the degree to which a benefit to the custodial parent will be considered to be a benefit to the child without direct proof of benefit to the child from relocation.
| 1. Presumption in favor of relocation: | 4 states (AR, OK, SD, WA)* |
| 2. Burden of proof on party opposing relocation: | 5 states (AR, CA, KY, MT, WY) |
* Although the Mississippi Supreme Court has not explicitly declared a presumption in favor of relocation by the custodial parent, the court has said: “This Court has repeatedly held that the mere moving of the custodial parent does not constitute a material change in circumstances for child custody modification purposes.” Giannaris v. Giannaris, 960 So. 2d 462, 468 (Miss. 2007) (reversing a trial court decision that modified custody to the noncustodial father and allowed him to move with the child to San Diego for new position with the Navy).
Jeff Atkinson, 1 Modern Child Custody Practice – Second Edition, § 7-1 (LexisNexis 2008)
SECTION 7. FACTORS CONSIDERED.
In deciding whether to grant relief under this act, the court shall consider:
(10) any other relevant factor affecting the best interest of the child.
The list of factors for the court to consider seeks to provide a comprehensive list of relevant factors without overloading the court with issues to weigh. Some states have longer lists of factors – e.g., Ala. Code § 30-3-169.3(a) (17 factors); La. Rev., Stat. § 9:355.12 (12 factors); Tenn. Code § 36-6-108(c) (11 factors); Wash. Code § 26-09-520 (11 factors). The additional factors generally are sub-categories of the factors listed here.
A seminal case in the development of the law of relocation is D’Onofrio v. D’Onofrio, 144 N.J. Super. 200, 206-07, 365 A.2d 27, 30 (Ch. Div. 1976), aff’d, 144 N.J. Super. 352, 365 A.2d 716 (App. Div. 1976), which listed four factor for consideration: [1]” the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children”; [2] “the integrity of the motives of the custodial parent in seeking the move in order to determine whether the removal is inspired primarily by the desire to defeat or frustrate visitation by the noncustodial parent, and whether the custodial parent is likely to comply with substitute visitation orders when she is no longer subject to the jurisdiction of the courts of this State”; [3] “the integrity of the noncustodial parent’s motives in resisting the removal and consider the extent to which, if at all, the opposition is intended to secure a financial advantage in respect of continuing support obligations”; and [4] whether “there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parental relationship with the noncustodial parent if removal is allowed.”
In the decades since D’Onofrio was decided, most states have adopted a list of factors similar to those used in D’Onofrio.
Generally, a single factor is not determinative. Courts must weight multiple factors to decide whether to allow or restrain relocation of the child.
The first factor (“The motives of the party seeing to relocate”) is often a threshold consideration. The party seeking to relocate usually must have a good faith reason for the relocation. Common good faith reasons include: pursuit of a new employment or better economic circumstances, accompanying a spouse to location, or a desire to be near family members. Regarding pursuit of new employment, courts will consider whether relocation for employment is truly necessary or if the party who seeks employment in a new location could obtain comparable employment in the current location.
A bad faith reason for relocation would be to undermine the child’s relationship with the other parent. If that appears to be the reason for relocation, courts usually will deny permission to relocate.
The second factor (“the motives of the party opposing the relocation”) also deals with the issue of good faith and bad faith. If a party opposing the relocation has been actively involved in the child’s life and has regularly exercised his or her parenting time or visitation with the child, the motives for opposing relocation will be considered in good faith. If, on the other hand, the party opposing relocation, has not spent much time with the child and appears to be opposing relocation as a means of harassment or to gain advantage on another issue, the opposition to relocation will be not be considered to be in good faith.
The third factor is “the quality of relationship and frequency of contact between the child and each party and other family members.” This factor can support relocation or a restraint on relocation, depending on the comparative strength of the child’s relationship with each parent and other family members.
The fourth factor (“history or threats of domestic violence”) would support a request to relocate if the party or child have been subject to abuse. The weight of the factor could depend on the recency of the abuse.
The fifth factor (“the likelihood of improving quality of life for child”) focuses directly on the best interests of the child. If, for example, relocation of the child will provide the child with significant, health, educational, or social benefits, those would be factors in support of relocation. If the facts show that the child’s quality of life would not improve or would deteriorate as a result of relocation, those would be factors against relocation.
The sixth factor is “the likelihood of improving quality of life for the party who seeks to relocate and the degree to which such improvements in quality of life benefit the child.” This factor overlaps with the first factor (“the motives of the party seeing to relocate”) and the fifth factor (“the likelihood of improving quality of life for child”). Improving the quality of life for the party who seeks to move is an appropriate factor, but it should be connected to benefits to the child. For example, if a parent’s economic condition improves, that benefit would carry over to the child.
The seventh factor is “the feasibility of restructuring custody, visitation, or parenting time in order to preserve the relationship between the child and the party who is not relocating.” This factor includes consideration of the costs and logistics of travel and the degree to which the parties can afford the travel arrangements. This factor also encompasses consideration of the child’s age and developmental needs. Louisiana’s statute – La. Rev. Stat. 9:355.12(2) – lists as a factor: “The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child.”
The eighth factor (“the feasability of both parties relocating”) could apply in cases in which the party who did not initiate the request to relocate is in a position to relocate to the same area as the other party and the child. For example, if a parent was a consultant whose main work involved traveling the country, the location of that parent’s home might be able to shift without undue hardship. For discussion of this factor, see Merle Weiner, Inertia and Inequality: Reconceptualizing Disputes Over Parental Relocation, 40 U.C. Davis L. Rev. 1747 (2007).
The ninth factor (“the degree to which the party seeking to relocate gave proper notice”) overlaps with the first factor regarding the moves of the party who seeks to relocate. If a party fails to give proper notice under Section 4 of the act (and full notice is not excused for good cause), that would be a factor against allowing the relocation.
The tenth and final factor (“any other relevant factor affecting the best interest of the child”) gives the court explicit flexibility to consider factors not listed.
Wash. Code § 26.09.530 contain the following provision to limit one category of evidence: “In determining whether to permit or restrain the relocation of the child, the court may not admit evidence on the issue of whether the person seeking to relocate the child will forego his or her own relocation if the child's relocation is not permitted or whether the person opposing relocation will also relocate if the child's relocation is permitted. The court may admit and consider such evidence after it makes the decision to allow or restrain relocation of the child and other parenting, custody, or visitation issues remain before the court, such as what, if any, modifications to the parenting plan are appropriate and who the child will reside with the majority of the time if the court has denied relocation of the child and the person is relocating without the child.”
SECTION 8. REMEDIES.
The remedies of the court include:
(5) ordering the relocating party to provide security in order to guarantee return of child; and
(6) Allocating payment of attorneys’ fees and cost between the parties.
Subparagraph (5) gives the court discretion to order the relocating party to provide security to secure return of the child. The requirement of security requires good cause, such as a finding that the parent who seeks to relocate has interferred with the other parent’s access to the child or that the relocating parent may not have sufficient funds to facilitate return of the child. Among the statutes that specifically allow the court to require posting of a bond or other security are: 750 Ill. Comp. Stat. 5/609(a); Iowa Code § 598.21D; La. Rev. Stat. § 9:355.14; N.C. Gen. Stat. 50-13.2(c).
Remedies concerning possible abduction of a child are contained in the Uniform Child Abduction Prevention Act.
Failure to provide proper notice under the act would be among the factors that could be considered in allocating fees between the parties.
To the extent available in other family law cases, courts have discretion to order: (1) mediation, (2) appointment of an attorney for the child, a guardian ad litem for the child, or other representative of the child’s interests; or (3) evaluation by mental health professionals or social service professionals.
SECTION 9. PRIORITY FOR HEARINGS.
A hearing on an order to permit or restrain relocation shall be accorded priority on the court’s docket.
This provision is modeled after La. Rev. Stat. 9:355.9. Since a request to relocate may be urgent, hearings on such requests should receive priority, although the level of priority the hearing will receive will be within the court’s discretion and may depend on other urgent matters on the court’s docket, including emergency hearing on other family law issues.
SECTION 10. UNIFORMITY OF APPLICATION AND CONSTRUCTION. In
applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
SECTION 11. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT. This [act] modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001, et seq., but does not modify, limit, or supersede Section 101(c) of the act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15
U.S.C. Section 7003(b).
SECTION 12. EFFECTIVE DATE. This [act] takes effect on . . . .
SECTION 13. REPEALS.
The following acts statutes, or parts there of are hereby repealed: [current statutes pertaining to relocation of child].
SECTION 14. TRANSITIONAL PROVISION.
A motion or other request for relief regarding relocation of a child which was commenced before the effective date of this [Act] is governed by the law in effect at the time the motion or other request was made.
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