New Case Law – Can I move with my child?

A common question that new clients come to my office is with is either can I move with the children or my ex-spouse has told me that she is going to move with the children and what can I do?  Child custody and/or parenting time modification matters often revolve around relocation issues.  In deciding these cases, the court will most frequently rely on the opinion of a custody and parenting time evaluator. 

On September 23rd, the Oregon Court of Appeals overturned the trial court on a relocation request by a custodial parent.  The facts of the case are as follows:  Father and Mother have one child, who is currently 9 years old.  They lived in Klamath Falls.  The parents split up about 8 months after the child was born, and agreed on a parenting plan under which Father received approximately 45% of the parenting time.  Shortly thereafter, Father married and Mother began living with her current husband, Taylor.  About three years ago, Father moved to Roseburg, and, as a result of the move, his parenting time decreased to 27%.  Around the same time, Taylor was given a job opportunity in Chicago.  Mother decided to relocate to Chicago with Taylor.  Mother argued to the trial court that it was in the child’s best interest to also relocate as the child had a strong bond with Taylor, Father had already moved and reduced his role, and that her relationship with Taylor would end if she could not move. 

A custody and parenting time evaluation was conducted.  As a point of legal technicality, Father initiated his case as a request for a change in custody, but then dismissed that claim, leaving the only issue at trial as a modification of the parenting plan.  This was a strategic move, as the burden in a modification of parenting time matter is only what is in the child’s best interest.

The trial court decided that Mother should be allowed to relocate with the child.  The court of appeals reversed the decision.  This has become a regular trend in relocation cases.  The court of appeals based its opinion on the fact that the relocation would harm the child’s relationship with Father, who would lose his frequent and regular parenting time. 

In discussing relocation matters, a parent should consider the following:  1. It is very likely that the court of appeals will overturn trial court decisions on relocation matters; 2. Trial courts often decide in favor of relocation despite this fact; and 3.  The child being allowed to move and then being brought back to Oregon is hard on everyone in the family.  It is crucial to have both competent trial and appellate counsel when considering how to either relocate or deal with a relocation issue.   A good attorney can help a parent put together a strong case for or against relocation and address how to best manage the issues with relation to the child.

For more information on relocation issues or on family law appellate issues, please contact Stephens & Margolin LLP 

The entire appellate opinion in Herinckx and Matejsek can be found here:  http://www.publications.ojd.state.or.us/A137564.htm

About Daniel Margolin

Daniel Margolin is a founding partner of Stephens & Margolin LLP and a Portland, Oregon native. His practice focuses on all aspects of family law litigation. Dan applies his litigation expertise to provide additional expertise when assisting clients with Family Law Appeals and Collaborative Divorce matters. To find out more or contact Daniel Margolin, visit Stephens & Margolin LLP
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4 Responses to New Case Law – Can I move with my child?

  1. Desiree says:

    I am having this same kind of issue and any help would be helpful. I met my soon to be x husband while I was living in Alaska and he was living in Oregon. He moved to Alaska for a job. We then got engagged and got married in Alaska. We had our first child there in Alaska. A month after our daughter was born my soon to be X claimed he couldnt handle Alaska and the darkness anymore and that IF I wanted to stay married to him we were moving. I decided I wanted to save my marriage and moved to Klamath Falls, Oregon. BIG MISTAKE! We agreed before we left Alaska that if for some reason I didnt like Klamath Falls, Oregon we would move just as we had done when he didnt like Alaska. I have been saying I hate it here since 6 mo after we moved here. We had our second child and were talking about moving. Oct. 2009 I had him where we were going to move to Boise, ID we just had to walk away from our house and the life here. His mother got involved and then we werent moving. Dec 2009 bad things happened and he left me alone on Christmas by myself without my kids. Jan 2010 I decided I was done with this marriage and how I was treated I filed. Now we are going thru Divorce and in court. Here are my issues. 1. I left all my family in Alaska because I wanted my marriage to work. 2. I got laid off aug 2007 and have been looking for a job in Klamath falls, OR with no luck. 3. I have no family here. 4. his family is causing stress and like to call me and harass me after they have been told not to have contact with me. 5. I have 4 job offers in Alaska. 6. I have a business opportunity with someone in Alaska. 7. I have a place to live there long with a condo that I can do with lease option to buy on. 8. their father has changed jobs every 9 mo to a year since we have been together so how can I ever rely on the fact he will help me support them. My job in Alaska I had for 9 years and they are one of the ones that I have an offer on now. 9. I have been the primary caretaker of our kids since birth being a stay at home mom since I was laid off. 10. In Alaska there are more jobs then here and my family is there too, why should we have to stay here where I have no one? 11. my family is huge and all are in Alaska and here in Klamath falls my ex’s family the only ones they speak to are themselves .. none of the cousin’s that are here do they even talk to… so Alaska more family support system. So tell me how this is logical to make us stay here? no job means that I cant support my kids to the manor they are accustomed to and that I would be living off welfare? how is that in the best intrest of our kids?

  2. Mary says:

    How do you assess the damage of my ex leaving Oregon and children to take a high profile Engineering job in Germany? My kids are in duress, and his parenting responsibilities (as far as the parenting plan go are non-exisitant. I want to protest the move. Doesn’t a parent have to notify the court if there are plans to move out of state or overseas? When large companies hire fathers or mothers to take jobs overseas, they take parents away from children. This is wrong.

  3. It sounds like the Court of Appeals got this one right.

  4. Michelle says:

    It has been my experience that it is next to impossible to relocate out of Oregon. The court does not favor the best interest of the child, however, it favors both parents having parenting time – whether that is the best for the child or not. Not all parents are good parents. Oregon is one of the worst States in the country for relocation. Better job, family, eductional opportunities, what have you – you and your child(ren) are likely stuck in Oregon – especially if your child’s father has financial backing for court and Attorneys and you do not. My once happy, stable child is an emotional mess, we are constantly brought to court for parenting time, custody, etc. Harrassment, manipulation and all sorts of behaviors which are inappropriate but not illegal take place. We cannot leave Oregon. This entire process has affected our lives so much that I am actually looking at how to help others and change legislation so that other children and families are not torn apart in the interests of parenting time. Good luck.

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