This is the text of my newsletter article about the statute Alabama has passed dealing with cases where one of the parents wants to move away from the other parent and take the children. Click here to read the statute itself.
The Alabama statute
Alabama has a statute to address the relocation of one parent after divorce. The new statute took effect in 2003 and governs all relocations occurring after that date, regardless of when the decree became effective. You can read the statute here.
When a custodial parent (CP) wants to move to a new area and take the children along, there is always disappointment and often conflict. On one hand are the interests of the CP and perhaps the children in an improved life in a different area. On the other are the equally legitimate interests of the noncustodial parent (NCP) and perhaps the children in maintaining existing relationships.
In one sense, the statute is a good thing, if for no other reason than because it codifies and clarifies principles that have been unsettled in the past. It provides more certainty when the CP wants to relocate, and in law, there is value in certainty in and of itself.
Under the statute a parent must notify the other parent before moving to a different state or to a location more than 60 miles from the other parent’s address, unless the move brings the children closer to the other parent. The moving parent must use certified mail (FedEx presumably is not acceptable). The notice must occur at least 45 days before the move or within 10 days after learning of the move if later.
The notice must include the address and phone number of the new residence and of the new school the child or children will be attending, the date of the move, the specific reason(s) for the move, a proposal for revising custody and visitation, if any (although the statute offers no guidance about what the parties will do with this information), and a warning that the other parent must object to the move within 30 days or the move will be permitted. If information is missing or unknown at the time of the notice, the parent must supply it as soon as it is available.
After the notice, the other parent has 30 days within which to object (longer upon a showing of good cause or excusable neglect). Upon objection, the court may delay the move until after a hearing.
At the hearing, the judge is to evaluate whether the move is in the best interest of the child, applying factors like the age and maturity of the child, alternative means of communication available, and how much the non-relocationg parent has used visitation in the past.
Unless there has been a finding of domestic violence, the statute sets up a rebuttable presumption that a move is NOT in the best interest of the child. Once the relocating parent overcomes this presumption (presumably by showing benefits available to the child at the new residence that are not available now), the burden shifts to the non-relocating parent.
The new statute tilts the balance of custody determinations in relocation cases decidedly toward the “Fathers’ Rights” perspective (assuming that most NCPs are fathers). First, it is stunningly long, running for nearly 5,000 words on nine single-spaced pages. The very complexity of the statute will likely have a chilling effect on decisions of CPs to move. Some CPs, unable to understand what the statute requires, may stay put simply out of bewilderment.
Second, the statute requires the CP in most cases to notify the NCP 45 days before moving (this has always been the courteous thing to do but has not been required before) and gives the NCP the right to demand a hearing about whether the move is in the best interest of the children.
Third, the presumption that a move is not in the child’s best interest is a fundamental change from existing law, under which the judge simply considers the best interest of the child. Existing law makes no presumption of any kind.
Oops! Traps for the unwary
The statute has several consequences that will surprise parents. First, it requires every decree addressing child custody after September 1 to include a page-long statement about the relocation statute. This will of course require the cutting down of more trees. Also, judges being who they are and the complexity of the law being what it is, scores if not hundreds of such decrees will violate the statute from the beginning.
Second, the statute requires notice of many moves that will catch people by surprise. For example, a move to a different state requires notice, even if it brings the children closer to the NCP. So if Dad lives in Huntsville and Mom and the children live in Mobile, Mom must notify Dad before moving to Chattanooga, even though the move would reduce Dad’s driving time to the children from six hours to two hours.
Third, the statute seems to require judges after a relocation to order contact and telephone access between the NCP and the child to assure that the child has “frequent, continuing, and meaningful” contact. The statutes gives the judge no discretion here, presumably even if the NCP has just raped and abused the child repeatedly. The legislature obviously didn’t intend this result, and one hopes no court would permit it, but the problem needs to be fixed.
Fourth, the statute requires anyone who has custodial or visitation rights to give notice before moving. This ensures that NCPs will routinely violate the statute when they move and neglect the required notice.
We have our first appellate court decision now (in February, 2005), interpreting the Alabama relocation statute. There’s a description of the ruling on my blog, or you can check out all the information here on Divorceinfo.com about the relocation statute.