Dealing with divorce or child custody cases can be emotionally fatigue and exhausting. So, after divorce or custody case, it is not uncommon for one of the spouses to choose to move away from the place where the couple made their home. Or else, one spouse may need to move to a different state where his or her families are. Whatever the reason may be, moving can affect the child involved, the existing child custody order, and the other parent ‘s right to visitation. In Georgia, there are many things you need to consider during or after filing for divorce if you plan to relocate with your child. Below provides an overview Georgia laws on parental relocation.
What are the standards for relocating with a child before divorce?
Prior to divorce, both parents have equal rights to their children. If you and your spouse no longer live together, you can move with your child to another city or state as long as you inform the other parent about the move. It is not necessary for you to have permission from the court or the other parent prior to moving. You only need to let your spouse know where the child is located to avoid possible kidnapping charges. You cannot take your child and hide the child from your spouse or prevent your spouse from contacting the child.
What are the standards for relocating with a child during divorce?
Once a divorce case is filed in Georgia, neither spouse is allowed to leave with the child without first getting the consent of the other spouse, typically in writing. This is because when you file divorce papers in Georgia, you give the Georgia court jurisdiction (i.e., power to decide) over issues pertaining to your marriage – including custody of your children during the divorce process. Accordingly, if you decide to move out of state and take your child with you, the court has the power to stop you from relocating if your spouse files a motion requesting it.
You have the right to file a motion yourself, however, asking the court for “temporary custody” pending your final divorce. Temporary custody orders may include provisions that would allow each parent to leave the state with the child. Therefore, if you want to take you children out of the state after filing for divorce, you can request the temporary custody order to permit the relocation you and your child. Georgia courts will decide all custody issues, including temporary custody, based on what is in the “best interests” of the child. Even if you have been taking care of your child’s day-to-day needs, if you plan to relocate from Georgia, the court may give temporary custody to your spouse to provide stability for your child while the divorce is pending.
What are the standards for relocating with a child after divorce?
After the court issues “permanent custody” (typically with the final divorce decree), that custody order determines how you and your spouse are to share time with your child. Georgia law does not require custodial parents (with whom the child lives with) to obtain permission from the other parent before relocating with the child, but it does require a relocating parent to give the other parent notice of such change. Such notification must be given at least thirty (30) days prior to the anticipated change of residence and include the full address of the new residence. [O.C.G.A. § 19-9-1(c)(3)]. This notice provides the other (non-moving) parent an opportunity to ask the court for modification of the custody order.
What happens if one parent relocates with a child after the child custody order?
After a divorce or a child custody proceeding, a custodial parent who tries to relocate must give at least thirty (30) days notice of his or her intention move to the non-custodial parent. As mentioned before, this allows the other parent to file an objection to the move. Georgia law used to presume that it is in the best interests of a child to relocate with a custodial parent. However, in 2003, the Georgia Supreme Court stated that instead of presuming that the custodial parent is allowed to move, the courts will determine what is in the “best interest of the child” by looking at each case individually. [Bodne v. Bodne, 277 Ga. 445 (2003)]. After the Bodne decision, the non-custodial parent can challenge if the custodial parent wants to relocate with the child and contest out-of-state or long distance in-state move of the child.
Also, in Georgia, parents considering relocation need to know how their child’s age may affect the custody order. Under Georgia law, a child who is fourteen (14) years old or order has the right to select the parent with whom he or she desires to live. [O.C.G.A. § 19-9-3(a)(5)]. The law states that the court will take the child’s preference into consideration (although it is not necessarily forced to agree with the child as to what the best interests of the child are) once the child has reached the age of fourteen (14). This means that if a custodial parent wants to move with his or her child and the other parent objects, the court will consider the wishes of the child who are fourteen (14) or older. Keep in mind that whether or not the relocating parent is the custodial parent, that parent must have the court approval before relocating the child if there are any restrictions in the divorce decree or the state laws.
What if the other parent agrees to the relocation of one parent and the child?
Although it is not always the case, if the other parent agrees to allow one parent to move out of the state with a child, it is important for that parent to ask a family law attorney to write and notarize such agreement. If not, the relocating parent may be later accused of parental kidnapping or violation of the court order. An attorney can simply file an order with both parents’ signatures giving their consent and submit it to the court for approval. A person commits the offense of kidnapping can be punishable by imprisonment not less than ten (10) years. [O.C.G.A. § 16-5-40]. Also, under Georgia law, penalties for violating a custody order can be large fines, jail time, loss of custody, and loss of visitation rights.
If you and your ex-spouse have a child together and you are considering leaving the state, it is recommend that you seek the advice of a family law attorney. Moving, whether you plan to move short-distance or out-of-state, may affect your child custody order. Your ex-spouse may challenge the relocation and file for modification of the custody order. More seriously, if the relocation violates the custody order, you can be subject to kidnapping or court order violation charges. An experienced local family law attorney can advise on your specific situation and provide insight into how the court usually handles these type of cases.
Obtaining legal help for your Georgia case.
If you are facing a relocation issue with a minor child for a Georgia case, call us at 770-609-1247 to speak with one of our experienced Georgia divorce and family law attorneys.