IF YOU HAVE SOLE OR JOINT PHYSICAL CUSTODY OF YOUIR CHILD AND WANT TO CHANGE THEIR RESIDENCE, YOU MUST DO THESE THINGS
In Missouri, there is a very specific law that sets forth what needs to happen for the sole or joint custodian of a child to lawfully change the principal residence of the child for more than 90 days.
Section 452.377 of the Revised Statutes of Missouri sets out very specific requirements for what both the moving parent and the other parent must do.
If a parent moves without following these procedures, in almost every instance the court will order that the child be returned to the other parent in Missouri.
Even if the other parent agrees in spoken word to the relocation, I recommend that these procedures be followed. It is gut wrenching to hear a parent describing her 8 year old son crying and screaming in terror as the Texas Rangers take him from her home to return to his father in Missouri after he told her by telephone that he had no objection to their son moving to Texas with her.
The process is unwieldy and in the event of an objection, can take a year or more, but the judges in St. Louis County do not look kindly upon parents who do not follow the law.
First, notice of the proposed relocation (with information described below) must be given to the other parent and any other person with rights to visitation or custody (case law limits this to persons who have court ordered rights, not just the right to seek custody or visitation) by certified mail, return receipt requested.
This notice must be sent at least 60 days before the proposed relocation, absent “exigent circumstances.” That term is not defined in either the statute or case law, but Black’s Law dictionary defines exigent circumstances as “circumstances that would cause a reasonable person to believe that … prompt action … was necessary to prevent physical harm … so it would-seem that this would be a rare exception to the 60 day rule.
The notice to be sent must include the following information:
- The new address and mailing address or if the new address is not known, the city;
- The home telephone for the new residence, if known
- The date of the intended move or relocation;
- A brief statement of the specific reasons for the proposed relocation of the child;
- A proposed schedule for custody or visitation of the child;
- The right of the other parent to file an action, with an Affidavit pursuant to the statute setting forth the good faith factual basis for opposing the relocation, and the fact that such documents need to be filed within 30 days of receipt of the notice.
If the required notice is not given, the statute provides that the court shall consider that failure as:
- A factor in deciding whether custody and visitation should be modified;
- A basis for ordering the child to be returned if the relocation occurred without notice;
- A basis to order the parent who did not give notice to pay the reasonable costs and attorney’s fees of the parent opposing the relocation.
If the parents agree to the relocation and a revised schedule for custody and visitation, they may submit an agreement with a Parenting Plan to the Court with an Affidavit stating consent to the terms of the Agreement and Parenting Plan signed by all parties with custody or visitation and the Court may order the agreed terms without a hearing.
If the parent receiving the Notice opposes the relocation, they must file a Motion and Affidavit in opposition to the relocation within 30 days of receipt of the Notice.
In response to the opposition, the parent seeking relocation must file a response within 14 days (unless extended for good cause) including an Affidavit stating the facts in support of the relocation and a proposed Parenting Plan in the event that relocation is permitted. The court will be looking for a Plan that allows for frequent and meaningful contact (both actual and virtual) between the staying parent and the child and a fair allocation of transportation costs and consideration of the same in the child support.
The burden is on the parent seeking relocation to prove that the relocation request is made in good faith and that the relocation is in the best interests of the child.
A parent who opposes relocation in good faith cannot be ordered to pay the fees of the par3ent seeking relocation. The opposite is not true.