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Having to move to another state is sometimes an unavoidable factor of life. When you are a divorced parent with children who spend the majority of their time under your care, you may feel that having your children move with you is the only logical step forward.

Unfortunately, not everyone will see it this way 100% of the time. When a parent wants to move to another state with their children following a divorce, there may be two huge legal obstacles to overcome:

  1. The other parent still has partial child custody, meaning they have a legal say in matters like relocation
  2. The family has an approved parenting plan and timeshare agreement, and keeping the current visitation schedule would prove to be difficult

Both factors can end up complicating moving plans. At the very least, the parent moving with the children will have to submit a new parenting plan and timeshare agreement for approval. The other parent may also have sound legal reasons to object to the relocation.

Every state has different rules regarding these matters, so for the remainder of the article, we will assume that the situation involves a divorced family residing in New Mexico and a parent wishing to relocate to another state. If you have any questions and need assistance in this matter, do not hesitate to contact a New Mexico child custody lawyer for legal guidance and representation during the divorce decree modification process.

An Out of State Move Has to Be a Joint Decision in Many Child Custody Cases or Court Ordered

New Mexico courts tend to view the status quo of the children’s current schedule and living arrangements as a beneficial state of being. When a parent seeks to move children out of state, they must make attempts to demonstrate how the move will benefit the children and the family as a whole, not just one parent.

Often, the situation of a move comes up when one parent already has the children living with them most days out of the year. In these cases, the children depend upon the parent for their living conditions, which includes the job that the parent has and the resources they have access to. In these cases, where a move is a result of a career need or somehow related to a parent’s ability to provide, then the court may be willing to understand how that move benefits the children.

Nevertheless, any time both parents share custody the other parent can have a say. A parent cannot ignore the other parent’s right to do so.

If, for example, the parent moves across state lines without a divorce decree modification in place, then the other parent can petition the court to order the child’s immediate return. New Mexico does not take parental abduction lightly, and the relocating parent must take great care to show that their intention was not to forcibly remove the child from the other parent’s influence but rather to make a move that could improve the whole family’s life.

Shared Custody Can Sometimes Prevent an Out of State Move

The state of New Mexico prioritizes giving parents shared custody following a divorce, when at all possible. Unless there are demonstrable reasons as to why a parent should not be allowed to make decisions in the child’s life, the court will prefer a custody arrangement where both parents have equal say.

Note that “child custody” in New Mexico refers to the concept other states may refer to as “legal custody” — as opposed to “physical custody” which in New Mexico is called a “timeshare arrangement”.

When two parents share custody, that means both are allowed to have input regarding decisions such as: what doctors the child will see, what school they will attend, what religious observations they may hold, and so forth. What state the child will live in can definitely fall under this legal purview, so a parent with shared custody can object to the move on the grounds that it is not in the child’s best interests.

From the court’s perspective, a significant change in the child’s life could have a detrimental impact unless there are sound reasons for doing so.

Typically, once an objection has been filed, the parents will be referred to attend a court clinic until the matter has been resolved. Alternatively, the court may appoint a guardian ad litem or custody evaluation expert to make a recommendation to the court.

Parents have a constitutional right to travel, but they do not have a constitutional right to take the child with him or her.  The parent requesting to relocate the child will have to demonstrate that relocating with the parent will be in the best interests of the child rather than remaining in the jurisdiction with the parent that is not relocating.

A relocation motion is extremely hard to settle because there is often no potential compromise–either the child moves or the child does not.

Moving Requires a Modification to the Parenting Plan and Timeshare Agreement

Like in custody matters, the state of New Mexico prefers to grant parents as near equal access to spend time with their children as possible. Unless both parents happen to live within roughly the same distance of the children’s school, this can be a difficult arrangement to preserve without significant accommodations. Once the question of an out-of-state move comes up, then it becomes nearly impossible to promise that the children will see both parents in a roughly equal amount of time.

New Mexico courts understand that out-of-state travel to visit a parent represents a significant burden for everyone involved. When a parent wants to move out of state with their children, the parent must be prepared to respond to objections that the move could mean the other parent suddenly loses the schedule that has existed with the child.  However, the parent who is now living in a different state will often be granted extended holidays and summer time-sharing with the child.

In all cases where a relocation happens, both parents, or the court, will need to modify the existing parenting plan and timeshare agreement. Simply ignoring these components of the divorce decree is not an option, and it could result in contempt charges, among other consequences. Instead, both parents will need to come to the table to determine an appropriate and workable new schedule or seek court assistance.

If one parent with a portion of court-ordered child supervision time objects to a move — even one who does not share legal custody — then the court could delay the children’s move indefinitely until the matter is resolved. However, if the parent making the move can show that a delay would cause significant harm to the children’s well-being, such as if it meant the children not being enrolled for the upcoming school year, then the court may grant the parent permission to go ahead and make the move while the new parenting plan is worked out.  However, the courts take a dim view of filing such motions at the last minute.  Any planned move should be brought to a court’s attention well in advance so the court can make a careful determination of what is in the child’s best interest.

Get Help Making an Out of State Move and Modifying Your Parenting Plan

New Mexico Financial & Family Law understands how important some life events like a move to a new state can be. If a family is held back by an unhappy parent, then all of those life plans can be put on hold. It is up to the parent making the move, then, to prepare a legal argument that can show how the move’s benefits will outweigh the costs, including the cost of spending less time with the other parent.

In some situations, the other parent may relent in the face of overwhelming evidence that the move is the best way forward. In other cases, the parent can resist, leading to a protracted legal battle fraught with temporary motions and inevitable uncertainty as to matters like the children’s schooling.

Our goal as a family law firm is to help you minimize disruptions to your children’s lives while seeking the best option for the family as a whole. If you are preparing a move or have a need to modify your divorce decree for whatever reason, we are here for you.

Schedule a no-risk case review today to speak with an attorney when you call (505) 503-1637 or contact us online.

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