Relocation

One issue I have clients come to see me about on a regular basis is what affect relocation has on a prior custody order.  A relocation in and of itself is not enough to change custody.  See

Cooley v. Cooley, 574 So.2d 694, 699 (Miss. 1991) (frequent moves within a short period of time, including move to Japan, insufficient to warrant change in custody) (overruled on other grounds); Spain v. Holland, 483 So.2d 318, 321 (Miss. 1986) (move to England does not require change in custody); Pearson v. Pearson, 458 So.2d 711, 713 (Miss. 1984) (move to Hawaii no per se basis for interfering in custody); Brocato v. Walker, 220 So.2d 340, 344 (Miss. 1969) [(move to San Antonio, Texas, not a material change in circumstances). See also Stevison v. Woods, 560 So.2d 176, 180 (Miss. 1990) (move to Alaska, along with split custody and poor relationship with child were "unusual circumstances" warranting change in custody). As stated in Spain v. Holland, 483 So.2d 318 at 321, "we close our eyes to the real world if we ignore that ours is a mobile society. Opportunity and economic necessity transport perfectly responsible adults many miles from their homes."

 

With the economy like it is, people are moving a lot as of late creating more litigation concerning custody.  The relocation itself is not enough and you have to still show the traditional standard for modification of custody.  In Mississippi, the traditional test for child custody modification is well established. Ferguson v. Ferguson, 782 So.2d 181, 183 (¶ 5) (Miss. Ct. App. 2001). In order to modify a child custody decree, the party seeking modification must first show that, since entry of the decree sought to be modified, there has been a material change in circumstances which adversely affect the welfare of the child. Creel v. Cornacchione, 831 So.2d 1179, 1183 (¶ 15) (Miss. Ct. App. 2002) (citing Smith v. Jones, 654 So.2d 480, 486 (Miss. 1995)). Second, the party must show that the best interest of the child requires a custody modification. Id.   Not every change in circumstances is so adverse that it warrants a custody modification; the chancellor must consider the totality of the circumstances. Ash v. Ash, 622 So.2d 1264, 1266 (Miss. 1993). "In all custody cases, the polestar consideration is the best interest of the child." Id.(quoting Sellers v. Sellers, 638 So.2d 481, 485 (Miss. 1994)).   "[A] material change in circumstances . . . requires proof of a serious material change in the home of the custodial parent." Deborah H. Bell, Bell on Mississippi Family Law § 12.11(5)(a) (2d ed. 2011) (emphasis added).

 

The best analogy in these cases is the relocation plus something else affecting the child to give the best shot at changing custody.  The best advice is if one is moving who has custody, file before the move to modify visitation previously discussed here.   If one is the noncustodial parent, look for something besides the move itself which adversely affects the child.