Inertia and Inequality: Reconceptualizing Disputes Over Parental Relocation

Abstract

This article focuses on the following rather provocative question: Should a noncustodial parent be able to stop a custodial parent from relocating with the couple’s child when it would be best for the child if the noncustodial parent simply moved with them? This article challenges conventional relocation doctrine and argues that the noncustodial parent’s mobility should be a key part of the legal analysis. The noncustodial parent’s mobility was an important topic to address in 2007 because the National Conference of Commissioners on Uniform State Laws was drafting a new Uniform Relocation Act. Prior model acts by the American Academy of Matrimonial Lawyers and the American Law Institute have ignored the noncustodial parent’s mobility. Most courts and legislators disregard this consideration too. Scholars that disapprove of custodial parents’ relocation skew the debate about relocation policy as they also ignore noncustodial parents’ mobility. The inattention to the noncustodial parent’s mobility is somewhat surprising since the supreme courts of New York, New Jersey and Texas have recognized its importance to the relocation analysis. These decisions have not received the attention they deserve for a variety of case-specific reasons; however, collectively they are ignored because the justification for the inquiry lacks a strong theoretical foundation. This article explains why the noncustodial parent’s mobility must be central to any relocation adjudication. It suggests that the omission undercuts the ability of courts to resolve these disputes in children’s best interests. In fact, judges all over the country lament the “irreconcilable conflict” between custodial parent’s desire to move and a noncustodial parent’s desire to maintain a vibrant relationship with the child, but fail to recognize that the best outcome for some children would be for the divided family to relocate together. In addition, the norm of equality demands that the noncustodial parent’s mobility be considered. The omission perpetuates gender stereotypes and undermines any attempt to provide equal rights of mobility to the custodial parent (usually the mother) and the noncustodial parent (usually the father). Finally, the omission undercuts the law’s attempt to promote postdivorce parenting as a partnership. The inclusion of the noncustodial parent’s mobility as a legitimate consideration in relocation cases will capitalize on law’s expressive function; it will encourage parents to consider new solutions that may be best for children. The article also addresses the interesting practical questions that flow from its argument. How much significance should the court give to the noncustodial parent’s convenience? Once a court decides that the noncustodial parent should follow, should the court restructure visitation to permit a recalcitrant parent to visit with the child on that parent’s own terms? What if the noncustodial parent has engaged in domestic violence and it is safer for the custodial parent and child to be distant from the noncustodial parent? Finally, the article demonstrates that this new focus on the noncustodial parent’s mobility may affect the application of a variety of laws that impact custodial parents’ travel, including constitutional law, criminal law, and other civil law provisions. This article represents a natural progression from my extensive writing on child abduction. Child abduction can result when custodial parents perceive, rightly or wrongly, that judges will not let them relocate. Therefore, the structure of relocation law is critical to deterring child abduction. In addition, a focus on the noncustodial parent mobility may affect the application of existing measures designed to prevent child abduction. Courts might impose fewer restrictions on custodial parents under the new Uniform Child Abduction Remedies Act (which I helped draft) if they considered whether the petitioner should just follow instead of complain. Prosecutors might even think differently about the crime of child abduction if the defendant reasonably believed that the other parent should follow.