When parents divorce, the Court must allocate the parental rights and responsibilities for the children between the parents. Part of that order must contain a parenting schedule. In our ever-evolving society, a residential parent often relocates from the residence at which he or she resided when the original decree of divorce was granted. Often this relocation is outside of the State of Ohio.
Ohio’s statutes do not require a custodial parent to seek permission to relocate. ORC Section 3109.051 (G) only requires the filing of a notice of intent to relocate by the residential parent. Once notice is given, the statute explicitly restricts the Court’s authority to that of modifying the current parenting schedule. Generally, however, once served with a notice of intent to relocate, the nonresidential parent will file a motion to modify parental rights and responsibilities between the parties so as to keep the children in Ohio. The nonresidential parent bears the burden of proof in demonstrating there has been a change in the child’s or residential parent’s circumstances and that denying the child’s relocation is in the child’s best interest.
A parent has a constitutional right to travel and hence to relocate. Because Ohio statutes do not provide guidance on the issue of relocation, one must look to case law in Ohio and other states as a benchmark for determining whether a party should be permitted to relocate the child.
Four factors have developed through case law and which have been codified in some State codes to be reviewed in determining whether to allow or prevent removal of the child from the State. Those four factors are as follows:
- The prospect of advantages of the move in improving the custodial parent’s and the child’s quality of life;
- The integrity of the custodial parent’s motive for the relocation, considering whether it is to defeat or frustrate the noncustodial parent;
- The integrity of the noncustodial parent’s motives for opposing the move; and
- Whether there is a realistic opportunity for parenting time between the nonresidential parent and the child which can provide adequate basis for preserving and fostering the relationship between the nonresidential parent and child if the relocation is permitted.
Essentially, what Courts have said when applying these four factors to a relocation situation, is that what is good for the “family unit” is good for each individual member; or, in the case of divorcing parents, what is good for the custodial parent will be good for each individual member of the parent’s household (i.e. the child).
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