Part of Real World Divorce: web edition | Kindle edition
A consequence of living in a big country is that there is a potential for a parent, post-divorce, to move with a child as far away as 5000 miles from the co-parent. A consequence of living in a country with 51 different sets of divorce, custody, and child support laws is that people can litigate over where to litigate ("venue").
In the winner-take-all states of the U.S., the family court awards the child of separated or divorced parents to one "primary" or "winner" parent. The secondary or "loser" parent takes care of the child every other weekend. This gives rise to the question "Under what circumstances can the winner parent move with the child?" Based on our interviews and research into statutes and appeals court decisions, there are two basic approaches in the U.S. to deciding whether or not the winner can move. Some states consider the "best interests of the child" and this makes it tough for a winner parent to relocate.
This has been studied statistically. As nearly all winner parents are mothers the conclusions regarded children's relationship with a male loser parent. Research psychologists have concluded that the mother's move essentially severs the father-child bond that was rendered tenuous by the primary/second custody decision. Courts in most states recognize this, which makes it difficult for the winner parent to move under a "best interests of the child" standard even when the child's contact with the loser parent has been limited to every-other-weekend by a previous court order. States that use a "best interests of the child" standard for evaluating relocation cases include Alabama, California, Minnesota, Texas, and Virginia.
A variety of states including Massachusetts, Mississippi, and North Dakota start from the custodial or primary parent's interest. The assumption is that if the parent with whom the child spends most of his or her time is happier, the child will be happier. If the primary parent says to the court "I will be happier on the other side of the continent with a new job and a new spouse," the judge can assume that this move will also benefit the child. The outcome will tend to be the same in states where the official standard is "best interests of the child" but judges bend it to consider the mother's interests as well (see Illinois, for example).
Attorneys report that relocation cases are very difficult to settle and generally consume at least as much time, energy, and legal fees as the original divorce.
Family Law in America (Katz 2014; Oxford University Press) is consistent with what attorneys told us:
The conventional rule in child custody is that unless there has been a custodial agreement allowing the custodial parent to leave the jurisdiction with her child and that agreement has been approved by the court, a spouse who wishes to move with her child must first notify the noncustodial spouse that she is seeking court approval for the move and give him an opportunity to be heard in a court proceeding. The reason for the judicial approval is that in domestic relations matters, courts jealously guard their jurisdiction and do not want to lose it. Ordinarily, the parent who has sole custody and seeks to relocate over the objection of her former husband has the burden of proving that circumstances have changed since the initial award.
Massachusetts employs a less strict standard known as the "real advantage test" when considering requests for relocation. The real advantage test reflects the reality that a child’s relationship with both parents can never be the same after a divorce and that the child’s welfare is determined in large part by the welfare and quality of life of the parent who retains physical custody. Therefore, a request for relocation will be granted under the real advantage test if the benefit of the move to the custodial parent will also inure to the child.
[Note the author's assumption that the victorious custodial parent is the mother, which is true more than 90 percent of the time according to Census data. (When we posed a gender-neutral relocation question, attorneys almost always answered starting from the assumption that the winner parent was the mother.). The author also assumes that the two biological parents were once married ("her former husband" and "a spouse"). This was likely true in the 1950s when he was fresh out of law school, but at least half of family court litigation today is between never-married adults.]
Relocation highlights the inconsistency of some winner-take-all states' messages to fathers. They'll put up posters in the courthouses saying that fathers are important and "a child needs two parents." But when a court needs to decide a practical relocation question, judges start from the point of view that losing every-other-weekend contact with the father won't be harmful to children.
Suppose that a winner parent decides to move two miles across the bridge from Duluth, Minnesota into Superior, Wisconsin. Which state's child support guidelines should apply? Is the child now worth $22,500 per year, the Minnesota cap? Or perhaps $200,000 per year under Wisconsin's unlimited system.
"The same federal Family Support Act  that put lawyers into the abortion-selling business generated an enormous amount of litigation across state lines," said one attorney. "because it became easy to calculate the child support that would be owed under each state's rules." According to Massachusetts attorney Fern Frolin, "This legal climate advantaged the parent in actual possession of the child. It encouraged forum shopping and child abduction." An example of forum shopping would be the custodial parent ("in possession of a child") moving from a state where child support payments were capped, e.g., Nevada, to a state where child support profits were potentially unlimited, e.g., neighboring California.
The patches to the system came in the 1990s, with the Uniform Interstate Family Support Act (UIFSA) and the Uniform Child Custody Jurisdiction And Enforcement Act (UCCJEA). The federal government pressured all 50 states into adopting UIFSA by 1998; UCCJEA has been adopted by all 49 states and D.C. (the hold-out is Massachusetts).
UIFSA sets forth eight factors under which a state can exercise its jurisdiction over a nonresident: (1) the nonresident is served [with legal papers] in the state, (2) the nonresident consents to the state's jurisdiction, (3) the nonresident resided with the child at some point within the state, (4) the nonresident resided in the state and provided prenatal expenses or support for the child, (5) the child resides in the state as a result of the acts or directives of the nonresident, (6) the nonresident engaged in sexual intercourse in the state and "the child may have been conceived by that act of intercourse," (7) the nonresident asserted parentage of a child in a "putative father registry" in the state, or (8) there is any other basis consistent with the state and federal constitutions for the exercise of personal jurisdiction.
Thus a Minnesota resident can be forced to pay under Wisconsin's laws if the parties had a sexual encounter in Wisconsin. If, on the other hand, the parties both lived in Minnesota originally and had sex in Minnesota, UIFSA prevents the winner parent from moving to Wisconsin and collecting at the higher rates there. As long as the loser parent stays in Minnesota, the capped Minnesota rates are applicable. Minnesota doesn't give up jurisdiction until both parents have moved out of the state. What if the loser parent moves to Nevada while the winner parent moves to Massachusetts? Now the loser parent can be served when visiting the child in Massachusetts and the lucrative Massachusetts guidelines will apply.
UCCJEA functions similarly. If the winner parent moves with the child, leaving the loser parent behind, the state that originally designated the parents as winner/loser retains jurisdiction. However, if the winner parent moves to a state with a 50/50 custody presumption there is a risk that the loser parent will also move and can ask the new state's courts to redetermine custody under the prevailing laws in that state.
The attorneys interviewed said that interpreting UIFSA and UCCJEA in a particular situation can be the subject of persuasive arguments on both sides and that courts in a new state are not always eager to take over jurisdiction and upset a previous court's order, particularly when the result would be a dramatic loss in revenue for the winner parent.
We asked Richard Victor, our Michigan expert and a veteran litigator of cases involving multiple jurisdictions, to consider Jessica Kosow, the plaintiff in Kosow v. Shuman who obtained primary custody of a child yielding $94,000 per year in tax-free child support profits. What if she were to move from Massachusetts to Alaska? Victor explained that Kosow's revenue stream would be at risk if the defendant also moves to Alaska, at least for a period of time. Her defendant could file a motion in Massachusetts to transfer the case to Alaska based on the fact that neither parent still lives in Massachusetts. The defendant then files a motion with an Alaska court to modify both the custody and child support in accordance with Alaska law, potentially resulting in a 50/50 parenting time arrangement and no more than $24,000 per year in child support. Susan Williams, our Oregon expert, says that it is quite possible that Massachusetts will retain jurisdiction for the amount and duration of child support (through age 23) but Alaska will definitely take over custody and parenting time issues. Even with Massachusetts jurisdiction, however, if the mother had significant earned income, the 50/50 custody arrangement could result in a downward modification of child support. If Massachusetts gives up jurisdiction, it would be possible for the child in Alaska to stop yielding cash for the mother when he or she turns 18, compared to 23 in Massachusetts. If the child were three years old at the time of the move, therefore, the mother risks losing $1.52 million in tax-free income by moving to Alaska. The mother might also have to contribute to the child's college education because an Alaska court cannot compel a loser parent to pay 100 percent of an adult child's college tuition, room, and board.
Moving to Alaska is a great way to save on income tax, but the typical child support plaintiff wouldn't be too worried about income tax rates, state or federal. In the Massachusetts chapter we looked at a plaintiff who supplemented $200,000 per year in taxable W-2 income by obtaining custody of a single child and $45,000 per year in tax-free child support. Her defendant earned $300,000 per year. She gets offered a similar-paying job near the beach in California. What happens if she takes it? Under the California guidelines, which cover these income levels as a matter of routine, she is entitled to only $17,040 in child support through age 18. Once again assuming that the child was three years old at the time of the move, she would potentially be giving up $644,400 in child support (about $1 million in pre-tax dollars). She also gives up the opportunity to impose 100 percent of the child's college costs on the father. Yet this is not the limit of her exposure. Suppose that a California court decides that the father can take care of the child 50 percent of the time? At that point, the child becomes a break-even or possibly even a money-losing financial proposition for the mother, with only $5,544 per year received in child support, close to Professor Comanor's calculation of what middle-class Americans actually do spend on a child. This would push the aggregate difference between California and Massachusetts child support up to at least $727,560 in cash payments plus potentially at least 50 percent of college costs.
Richard Victor points out that this highlights the hazards of settling a case by agreement. For example, if the defendant agreed via settlement to pay 100 percent of children's college costs that would likely be enforceable after a move. By contrast, even in the unlikely event that such a provision were in a judgment following a divorce trial (typically a judge would wait until the kids were nearing college age before ordering an allocation of costs), if the new state does not allow courts to order support for healthy over-18-year-olds, the Massachusetts order would not bind the court in the new state. Victor reminds us that the legal wrangling, and associated fees, won't end in the new state: "Best interests of the child factors usually come into play at some point with these requests for modification."
In states from which relocation is easy for parents who have won or are on track to win custody, attorneys report that plaintiffs may pressure defendants by threatening relocation: "Settle by giving me a ton of money or you'll never see your kid again."
Should a defendant be seriously concerned about this? It depends on the custody and child support laws in the respective states. A plaintiff who can get out of a state with a shared parenting default and/or capped child support is going to be able to inflict a lot more harm on the child and defendant by moving to a winner-take-all state. A plaintiff who is already in a winner-take-all state and is on track to be the winner is extremely unlikely to move.
"When one of my child-support-paying clients tells me that his ex- is threatening to move," one Massachusetts attorney notes, "I ask him 'Why would she quit working a gold mine in order to start working a tin mine?'"
From our Florida chapter:
"I worked on one interesting case. The wife is an attorney and practices in New York while the husband is a resident of Florida. They have two children. In Florida if either person is a resident for six months, a spouse can file for divorce. The wife thus had a choice of Florida or New York law. She sued her husband in Florida, represented by a New York attorney, so that her practice would not valued and divided." Didn't that deprive her of the opportunity to get near-automatic sole custody of the children from New York courts? "No. The children live in New York so jurisdiction for them was in New York. The wife filed a separate custody and child support action in New York. She was divorced in Florida and therefore didn't have to give the husband any money from her law practice, but she collected custody of the kids and 21 years of child support from the New York courts where a Florida court would have given her shared custody and only 18 years of child support." Can she now force this defendant to pay for the children's college education? "Yes, under New York law." Could the husband object to the jurisdiction of the New York courts on the grounds that he was living in Florida and the divorce was being litigated in Florida? "No. You can serve someone for custody by mail under UCCJEA [Uniform Child Custody Jurisdiction and Enforcement Act]. She got personal jurisdiction over him in New York when he went up there to visit the kids."
Even when it doesn't make sense to sue in two states at the same time, litigants need to be aware of substantial differences in property division laws. As noted above, in New York (and also in Colorado, for example) it is possible to obtain immediate cash via property division from a spouse's interest in a partnership, such as a law firm or medical practice, and also collect annual alimony based on the income that flows out of the partnership. Another state would consider this to be double-dipping, however, and award only one or the other on the basis that the only value of the partnership was the income stream.
If you are married with a vacation house in a different state, if you aren't married and had sex in a state other than where you normally reside, or if there is any question of which state has jurisdiction over a divorce, custody, or child support lawsuit, you need to hire an attorney with expertise in multi-jurisdiction litigation.