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Moving On? Issues Presented When A Parent Seeks Permission To Relocate Out of State With Their Child, but Without Their Ex.

 

9/19/12

By Richard E. Kühn, III, Esquire

(Licensed in RI, MA, and the U.S. District Court for the District of RI)

*Please note that the Rhode Island Supreme Court and the Massachusetts Supreme Judicial Court licenses all lawyers in the general practice of law. No lawyer is certified as an expert or specialist in any field of law.

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INTRODUCTION

         Issues surrounding the care of children who's parents have parted ways can be daunting, emotionally, and factually complex. In the State of Rhode Island, where travel to and from our neighboring states is easily accomplished in less than a couple of hours from anywhere within the state, questions regarding relocation often come up in custody proceedings. This article is intended to be a discussion of relevant law bearing on the issues of relocation, custody, and the "best interest" factors and considerations utilized in Rhode Island Family Court proceedings. This article is not intended to, nor should it be relied on to provide legal advice for your particular case; you should consult with an attorney licensed in your jurisdiction for advice on your particular case.

        As one would expect, the facts in any given case govern the outcome. In Dupré v. Dupré, 857 A.2d 242 (R.I. 2004) the Rhode Island Supreme Court set forth the framework Rhode Island Family Courts may utilize to render a decision on a parent's Motion to Relocate.

        In Dupré , the Court noted that"(i)t is the trial justice who is in the best position to determine what factors may be relevant on a case-by-case basis, and his or her discretion in this regard should not be unduly constrained. Id. The Court identified "(c)ertain factors... which are of significance whenever a parent seeks to move with his or her children." Id.

      The Rhode Island Supreme Court in Dupre held that the following factors should be considered in a parent's Motion to Relocate minor children out of state:

 

(1) The nature, quality, extent of involvement, and duration of the child's relationship with the parent proposing to relocate and with the non-relocating parent.

(2) The reasonable likelihood that the relocation will enhance the general quality of life for both the child and the parent seeking the relocation, including, but not limited to, economic and emotional benefits, and educational opportunities.

(3) The probable impact that the relocation will have on the child's physical, educational, and emotional development.

(4) The feasibility of preserving the relationship between the non-relocating parent and child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.

(5) The existence of extended family or other support systems available to the child in both locations.

(6) Each parent's reasons for seeking or opposing the relocation.

        The parent's reasons for relocation are very important to their case. The Court in Dupre advised that relocation ... "ought not be predicated upon a whim. On the other hand... a relocating parent need not establish a compelling reason for the move." Id. at 259-260. There are many reasons a parent may wish to relocate, whether it be a job, to be closer to family, or for other reasons.

The Court in Dupre identified the following non-exclusive list of valid purposes for relocation:

    "(1) to be close to significant family or other sources of support, (2) to address significant health problems, (3) to protect the safety of the child or another member of the child's household from a significant risk of harm, (4) to pursue a significant employment or educational opportunity, (5) to be with one's spouse or domestic partner who lives in, or is pursuing a significant employment or educational opportunity in, the new location, (6) to significantly improve the family's quality of life. The relocating parent should have the burden of proving the validity of any other purpose." Section 2.17(4)(a)(ii).

         A parent cannot seek relocation for the purpose of isolating the minor child or children from their ex; nor can the opposing parent object "to secure a financial advantage or to exercise a measure of control over an ex-spouse, rather than out of a sincere desire to foster a relationship with the child." Id.

(7) To the extent that they may be relevant to a relocation inquiry, the Pettinato factors also will be significant.

         The factors set forth in the Rhode Island Supreme Court's decision in Pettinato v. Pettinato, 582 A.2d 909 (1990) are factors that may be examined to determine whether or not the move is in the best interests of the minor child. The factors which may be considered include:

    1. The wishes of the child's parent or parents regarding the child's custody.

    2. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.

    3. The interaction and interrelationship of the child with the child's parent or parents, the child's siblings, and any other person who may significantly affect the child's best interest.

    4. The child's adjustment to the child's home, school, and community.

    5. The mental and physical health of all individuals involved.

    6. The stability of the child's home environment.

    7. The moral fitness of the child's parents.

    8. The willingness and ability of each parent to facilitate a close and continuous parent-child relationship between the child and the other parent.

          In Rhode Island, and in many other jurisdictions, "(t)he best interests of the child should not be determined by assessing any one factor. The trial justice must consider a combination of and an interaction among all the relevant factors that affect the child's best interests.

         The Court in Dupre cited above further advised that it's "recitation of factors to be considered is not intended to be exhaustive. Nor is any one factor dispositive. Each case will present its own unique circumstances that a trial justice must balance and weigh as he or she deems appropriate." This means that the trial justice may consider the particularized circumstances of each case, and his or her decision is not confined strictly to the factors enumerated above.

         As you would expect, the facts in your case are all-important. I have provided a brief synopsis of some relevant case law below. Once again, please consult an attorney licensed in your jurisdiction for necessary particularized legal advice; these are exceptionally important life changes, and the advice of counsel is invaluable.

RELEVANT CASE LAW:

1.) In DePrete v. DePrete, 44 A.3d 1260 (2012) , The plaintiff, Beth A. DePrete, appealed from an order of the Family Court reflecting the court’s denial of her motion seeking leave of court to relocate the parties’ two minor children from Rhode Island to Texas and seeking modification of the final judgment of divorce to reflect the same. Ms. Deprete was engaged to be married to a Colonel of the United States Air Force who was stationed in Texas. The parties in DePrete had no connection to Texas, both Ms. Deprete and her fiance were native Rhode Islanders; 2.) the oldest of the parties' children was tormented by the idea of relocation to Texas; 3.) and Mr. Deprete was exceptionally involved in the childrens' upbringing, participating in team sports and the like. The Supreme Court of Rhode Island affirmed the decision of the Family Court denying the petitioner's Motion to Relocate.

2.) In Dupré v. Dupré, 857 A.2d 242 (R.I. 2004) a mother sought relocation of the parties' minor children to the island of Huahine, Tahiti; the moving mother was an artist who felt uninspired by the New England landscape and sought relocation to an island paradise.

The Rhode Island Supreme Court in Dupre denied the mother's request to relocate the children to a remote island in Tahiti based upon the factors which have been discussed above.

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Author's Contact Information:

Richard E. Kühn, III, Esquire

The Law Office of Richard E. Kühn, III

155 N. Main Street, Fall River, MA 02720

www.AttorneyKuhn.com

AttorneyKuhn@Gmail.com

tel. (RI)  401.388.0412

     (MA) 774.955.0808