It’s normal for parents to have demanding situations arise with their children, especially for parents that are no longer together. When a solution can’t be worked out, the courts are available to resolve the matters. An issue that arises often concerns the relocation of children. The facts follow a similar pattern; The parents divorced and have a custody order in place. Everything goes smoothly for a few years, then the custodial parent gets a new job and wants to move with the children. Can they do this legally? Let’s start by looking at whether or not Louisiana’s relocation statute is applicable.
Louisiana’s Relocation Statute can be found in La. R.S. 9:355.1 et seq.
The Relocation Statute applies when one parent (or another person with custody) intends to establish the principal residence of a child at any location outside the state of Louisiana. It also applies when moving the child’s primary residence within the state of Louisiana more than 75 miles from the domicile of the other parent (if there is no custody order in place) or more than 75 miles from the principal residence of the child (if there is a custody order in place).
In our factual situation, the custodial parent is moving to Lake Charles, Louisiana from Albany, Louisiana. We start our evaluation by determining the principal residence of the child. We stated in our facts that a custody order was in place. The relevant portion of the statute states that it applies to moves of more than 75 miles from the principal residence of the child if there is a custody order in place. So how do you determine the principal residence of the child?
La. R.S. 9:355.1 (1) provides: (click here to read statute)
(1) “Principal residence of a child” means:
- (a) The location designated by a court to be the primary residence of the child.
- (b) In the absence of a court order, the location at which the parties have expressly agreed that the child will primarily reside.
- (c) In the absence of a court order or an express agreement, the location, if any, at which the child has spent the majority of time during the prior six months.
We have a court order designating the residence in Albany, Louisiana, so that is the primary residence of the child. Next, we must determine if the move exceeds the number of allowable miles to move a child.
La. R.S. 9:355.2. Applicability (click here to read the statute)
A. This Subpart shall apply to an order regarding custody of or visitation with a child issued:
(1) On or after August 15, 1997.
(2) Before August 15, 1997, if the existing custody order does not expressly govern the relocation of the child.
B. This Subpart shall apply to a proposed relocation when any of the following exist:
(1) There is intent to establish the principal residence of a child at any location outside the state.
(2) There is no court order awarding custody, and there is an intent to establish the principal residence of a child at any location within the state that is at a distance of more than seventy-five miles from the domicile of the other parent.
(3) There is a court order awarding custody, and there is an intent to establish the principal residence of a child at any location within the state that is at a distance of more than seventy-five miles from the principal residence of the child at the time that the most recent custody decree was rendered.
(4) If either no principal residence of a child has been designated by the court or the parties have equal physical custody, and there is an intent to establish the principal residence of a child at any location within the state that is at a distance of more than seventy-five miles from the domicile of a person entitled to object to relocation.
C. To the extent that this Subpart conflicts with an existing custody order, this Subpart shall not apply to the terms of that order that govern relocation.
D. This Subpart shall not apply when either of the following circumstances exists:
(1) The persons required to give notice of and the persons entitled to object to a proposed relocation have entered into an express written agreement for the relocation of the principal residence of the child.
(2) There is in effect an order issued pursuant to Domestic Abuse Assistance, R.S. 46:2131, et seq., Protection from Dating Violence, R.S. 46:2151, Part II of Chapter 28 of Title 46 or the Post-Separation Family Violence Relief Act or Injunctions and Incidental Orders, Parts IV and V of Chapter 1 of Code Title V of Code Book I of Title 9, except R.S. 9:372.1, all of the Louisiana Revised Statutes of 1950, Domestic Abuse Assistance, Chapter 8 of Title XV of the Children’s Code, or any other restraining order, preliminary injunction, permanent injunction, or any protective order prohibiting a person from harming or going near or in the proximity of the other person.
Emphasis is added to D., and this part does not apply if any of the listed circumstances exist.
Is Lake Charles Louisiana more than 75 miles from Albany, Louisiana? Yes. So the Relocation Statute is triggered, and you must abide by this statute before relocating your child. Who can propose relocation is the first question to be answered.
§355.3. Persons authorized to propose relocation of principal residence of a child (click here to read the statute)
The following persons are authorized to propose relocation of the principal residence of a child by complying with the notice requirements of this Subpart:
(1) A person designated in a current court decree as the sole custodian.
(2) A person designated in a current court decree as a domiciliary parent in a joint custody arrangement.
(3) A person sharing equal physical custody under a current court decree.
(4) A person sharing equal parental authority under Chapter 5 of Title VII of Book I of the Louisiana Civil Code.
(5) A person who is the natural tutor of a child born outside of marriage.
In our factual situation, there is a custody order in place, so La.R.S. 3:55.3 applies, so the domiciliary parent has the right to propose relocation. At this point, we have triggered the relocation statute and found that the parent has the right to seek relocation, so what is the next step? Provide information to the other parent.
§355.5. Mailing notice of proposed relocation address (click here to read the statute)
A. Notice of a proposed relocation of the principal residence of a child shall be given by registered or certified mail, return receipt requested, or delivered by commercial courier as defined in R.S. 13:3204(D), to the last known address of the person entitled to notice under R.S. 9:355.4 no later than any of the following:
(1) The sixtieth day before the date of the proposed relocation.
(2) The tenth day after the date that the person proposing relocation knows the information required to be furnished by Subsection B of this Section, if the person did not know and could not reasonably have known the information in sufficient time to provide the sixty-day notice, and it is not reasonably possible to extend the time for relocation of the child.
B. The following information shall be included with the notice of intended relocation of the child:
(1) The current mailing address of the person proposing relocation.
(2) The intended new residence, including the specific physical address, if known.
(3) The intended new mailing address, if not the same.
(4) The home and cellular telephone numbers of the person proposing relocation, if known.
(5) The date of the proposed relocation.
(6) A brief statement of the specific reasons for the proposed relocation of a child.
(7) A proposal for a revised schedule of physical custody or visitation with the child.
(8) A statement that the person entitled to object shall make any objection to the proposed relocation in writing by registered or certified mail, return receipt requested, within thirty days of receipt of the notice and should seek legal advice immediately.
C. A person required to give notice of a proposed relocation shall have a continuing duty to provide the information required by this Section as that information becomes known.
The information must be provided to the other parent by certified or registered mail, return receipt requested or delivered by a commercial carrier to his or her last known address. Providing the information via text messaging or emailing is not sufficient under Louisiana law. This information must be provided to the other parent either by the sixtieth day before the date of the proposed relocation (if you know where you are going, etc.) or the tenth day after the date you know the information. If you know the required information, then you must provide a sixty-days notice. If you do not know that information, and could not have reasonably known that information, then you must provide that notice within ten days of knowing the address, physical location, and phone number. If you fail to give proper notice, you can hurt your chances to relocate your child successfully and may be subject to paying the objecting parents fees
After proper notice of the relocation, the other parent has 30 days to object. If they do not timely object, the requesting parent may relocate the principal residence of the child. If a proper objection is made, the requesting party has 30 days to file a motion to relocate. What is a proper objection made? La. R.S. 9:355.7 requires the parent must object, in writing, sent to your address provided in the notice, via certified mail or commercial carrier.
If the other parent objects relocation and you filed a timely Motion to Relocate the court will schedule a contradictory hearing to rule on the relocation issue. In making the determination, the court will consider if the relocation is made in good faith and is in the best interestof the child.
The factors to determine contested relocation are found in La. R.S. 9:355.14:
§355.14. Factors to determine contested relocation (click here to read the statute).
A. In reaching its decision regarding a proposed relocation, the court shall consider all relevant factors in determining whether relocation is in the best interest of the child, including the following:
(1) The nature, quality, the extent of involvement, and duration of the relationship of the child with the person proposing relocation and with the non-relocating person, siblings, and other significant persons in the child’s life.
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development.
(3) The feasibility of preserving a good relationship between the non-relocating person and the child through suitable physical custody or visitation arrangements, considering the logistics and financial circumstances of the parties.
(4) The child’s views about the proposed relocation, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct by either the person seeking or the person opposing the relocation, either to promote or thwart the relationship of the child and the other party.
(6) How the relocation of the child will affect the general quality of life for the child, including but not limited to financial or emotional benefit and educational opportunity.
(7) The reasons for each person for seeking or opposing the relocation.
(8) The current employment and economic circumstances of each person and how the proposed relocation may affect the circumstances of the child.
(9) The extent to which the objecting person has fulfilled his financial obligations to the person seeking relocation, including child support, spousal support, and community property, and alimentary obligations.
(10) The feasibility of a relocation by the objecting person.
(11) Any history of substance abuse, harassment, or violence by either the person seeking or the person opposing relocation, including a consideration of the severity of the conduct and the failure or success of any attempts at rehabilitation.
(12) Any other factors affecting the best interest of the child.
B. The court may not consider whether the person seeking relocation of the child may relocate without the child if relocation is denied or whether the person opposing relocation may also relocate if relocation is allowed.
Acts 1997, No. 1173, §1; Acts 2012, No. 627, §1.