Child custody cases are among some of the hardest and most emotionally charged of all cases that come before the court.  When one parent wants to move away with the children the situation becomes even more difficult.  The best solution in a custody situation is one in which the parents put the best interest of their children before their own and resolve their differences in an amicable way without the interference of the court. 

Certainly all parents would agree that a decision made by the two people who know the children in question is likely to be a better decision than one made by a perfect stranger who just happens to wear a robe and sit up on a bench.  Unfortunately, when parents cannot agree there is no alternative but to turn to the court system for help. 

Can a parent just pick up and move?

The Supreme Court of the United States has long upheld the constitutional right to travel freely between states or to a foreign country.  United States v. Guest, 383 U.S. 745, 86 (1966); Bigelow v. Virginia, 21 U.S. 809, 95 (1975); Smith v. Turner, 12 L.Ed.2d 702 (1849); Califano v. Aznavorian, 439 U.S. 170 (1978).  However, in Kansas, the court has unanimously held that a person does not have the unfretted right to take another’s child on their travels against the wishes of the other parent.  Carlson v. Carlson, 8 Kan. App. 2d 564, 661 (1983). 

What requirements must you fulfill before moving with your children?

Any parent in Kansas with the rights of legal custody, residency or parenting time must give the other parent written notice by certified mail, restricted delivery, return receipt requested, 30 days prior to any change in residency or if they are going to take the child out of state for more than 90 days.   The 30 day requirement exists whether the move is inter-state or intra-state. (Kansas Statutes 38-1132(a); Kansas Statutes 60-1620(a)) Thus, to fulfill Kansas statute even if a parent intends to move with the children across the street the notice is required.

Failure to give proper notice constitutes indirect contempt of court.  (Kansas Statutes 38-1132(b); Kansas Statutes 60-1620(b)) The only exception to the notice requirement is if the “other” parent has committed a person crime in which a child was a victim.  (Kansas Statutes 21-3408 and 21-3410). 

A parent does not need a lawyer to give notice.  The parent must simply send a letter meeting the statutory requirements of notice to the other parent.  Once the 30 days has expired the residential parent may move with the children assuming that the other parent has not taken affirmative steps to prevent the move, such as filing a motion with the court.  Either parent can file a motion with the court to determine the issues involved.  (Kansas Statutes 38-1132(c)).  These issues generally focus on parenting time but often include related issues including but not limited to child support, travel expenses, arrangements for exchanges and vacation time. 

What does the Court consider when determining if a parent can move with the children?

In determining if a child should be permitted to move, the state has a strong interest in providing stability in the lives of children of a separated family and in protecting their mental, emotional and physical welfare.  In re D.B.S, 20 Kan. App.2d 438, 453 (1995).  Kansas courts have not stated a presumption in favor of or against moving children against the wishes of a parent. 

Additionally, neither parent has a right to custody.  No presumption exists in favor of one parent over the other parent, regardless of the child’s age.  The Kansas courts have been giving weight to continued regular contact with both parents when determining if the children should be permitted to move.  In fact, Kansas law states that a change of residence may be considered a material change in circumstances which can justify a change of custody or residency.  (Kansas Statutes 38-1132(c) and 60-1620(c)).

The court’s task is to weigh all relevant factors to determine what is in the best interest of the children.  The factors that the court considers are those same factors that a court considers when it makes an original custody determination.  These factors include:

• The length of time the child has been under the actual care and control of any person other than a parent and the circumstances related thereto;
  
  
• The interaction and interrelationship of the child with the parents, siblings and any other person who may significantly affect the child’s best interest;
  
  
• The interaction The child’s adjustment to the home, school and community; and
  
  
• The willingness and ability of each parent to respect and appreciate the bond between the child and the other parent and to allow for a continuing relationship between the child and the other parent.  (Kansas Statutes 60-1610(a)(3)(B)).

Because it is a move away situation,  in weighing the above factors the court must also examine (1) the effect of the move on the best interest of the child; (2) the effect of the move on parenting time; and (3) the increased cost the move will place on parenting time.  (Kansas Statutes 60-1620).

It is not enough for a parent to show the court that only the parent’s interest will be advanced by the move without consideration of the child’s interest.  In re Marriage of Bradley, 258 Kan. 2d 39, 45 (1995)  Additionally, an agreement incorporated into a divorce decree does not prevent the court from making an order allowing a child to move.   Carney v. Carney, 1 Kan. App. 2d 544, 545, 571 (1977).

What does all this mean for a parent who wants to move with the children?

A residential parent cannot simply pick up and move.  Parents should proceed with caution.  Proper notice must be given.  Most importantly, however, each parent should examine his or her motive for the move.  Is the move really in the children’s best interest?  A parent should ask himself or herself that very question and consider the factors set forth above to determine the answer.  If the other parent opposes the move, the court is going to pose that very same question.  The parent requesting to move with the children should be prepared to answer that question because that parent has the burden to show that the move will be in the best interest of the children. 

To reach the author, call Kathy Barker at (913) 438-4636,

or send e-mail to Kathy@yourchild1st.com .

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The information on this site is only for general educational purposes, and not for legal advice. Laws change, and their application may vary significantly depending on your circumstances. If you need legal advice, you must consult an attorney.  The choice of a lawyer is an important decision and should not be based solely upon advertisements.

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