So, You Need to Move: Now What?
How to properly relocate your residence in divorce, child custody,
visitation, and parentage cases – with or without your child.

So, you need to move . . .

For one reason or another, you find yourself in a stressful situation—you need to move residences. As if your divorce, custody, visitation, or parentage case were not stressful enough!

You may be thinking, “Am I allowed to move away from my ex?;” “Can I take my child with me?;” or, “Can the Judge keep me from moving?” As with most legal questions, the answers can be “Yes,” or “No,” depending on the facts of your case.

So, how can you give yourself the best chance of being allowed to move? What do you need to show your Judge for him or her to give you permission to move, over someone’s objection? What are the consequences for failing to follow the legal procedures to relocate? Can the Judge stop me from moving? These are all important considerations, when determining whether or not a move will work for you and your family.

What are the procedures I need to follow?

If you have children and need to move your primary address of residence, Oklahoma law requires that you serve a Notice of Intent to Relocate on any other person who might have a right to custody of or visitation with your children[1]—regardless of whether or not you want to move with your children, and regardless of whether or not your divorce, custody, visitation, child support, or parentage case is “active.”

Once all the people entitled to notice receive service of your Notice of Intent to Relocate, they then have thirty (30) days to file an objection to a relocation of your children (if applicable) and to formally request a permanent and/or temporary Order to prevent your relocation with the Court.

Upon receipt of the objection and request for permanent and/or temporary Order, the Judge will decide whether or not you are allowed to move with your children at a hearing, and will enter new custody, visitation, and child support Orders, if needed.

What do I include in my Notice of Intent to Relocate?

Unfortunately, a text message saying, “Hey, I’m going to move,” will not be enough. Instead, Oklahoma Statute title 43, § 112.3[2] sets out exactly what information needs to be provided, in writing, to include:

  • Where you intend to move your residence, including your exact residential address (if known);
  • Your new mailing address, if different from your residential address (if known);
  • Any new home telephone number (if known); and
  • The date you plan to move.

This statute also requires you to provide the following additional information, if you plan to move any child’s residence:

  • A summary of your exact reasons for moving the child;
  • Your proposal for a new visitation schedule between the child and any person with a right to custody of or visitation with the child; and
  • A warning to the persons provided with notice (i.e., the nonrelocating parent) that they must file an objection to the relocation with the Court within thirty (30) days after receiving service of your Notice, or the relocation is automatically allowed.[3]

The more information you provide, and the more detailed you are, the better your chances will be that your Notice is deemed adequate. 

How do I “serve” this Notice of Intent to Relocate?

In order to serve your Notice of Intent to Relocate, you must provide this written notice to anyone with any right to custody of or visitation with your children at least sixty (60) days prior to the date you intend to move, or, if you find out about the move after this deadline, within ten (10) days after you determine you need to move. However, notice should be provided as soon as humanly possible.

While it may sometimes be enough to hand-deliver your written Notice, you do not want to get into a “he said, she said” argument in front of the Judge as to whether or not you actually served the Notice. The safest and most effective ways to serve your Notice are either to (a) hire a process server to serve anyone entitled to the Notice, and file the process server’s Affidavit of Service with the Court; or to (b) send the Notice to anyone you need to serve by certified mail, return receipt requested, delivery restricted, and file proof of the service (a copy of the signed return receipt) with the Court.

It is also a good idea to file a copy of your Notice of Intent to Relocate with the Court, so that all persons with any right to custody of or visitation with your child/children also can access the Notice through the Court.

What are the rights of the people who receive the Notice?

Unless you are moving with your child, there is nothing the Judge can do about your relocation—you have a Constitutional right to freedom of travel,[4] which includes your right to establish your state of residence. In that case, the Judge should only be asked to address modification of custody, visitation, and/or child support to reflect the change of circumstances created by your move.

If, however, you do intend to relocate with your child, the rights of other persons who receive notice depends on the circumstances of your case.

If the only person(s) entitled to notice are grandparents with rights to visitation, the only action they may take, upon receipt of the Notice, is request a modified visitation schedule by filing a Motion with the Court.

However, unless you and the other parent negotiate and agree upon all the terms of your move, the other parent does have a right to request that the Court either temporarily or permanently prohibit your relocation with the minor child, though the extent of the other parent’s rights depend on the circumstances of your case.

When the other parent objects to your child’s relocation, the first (and arguably most important factor) to consider is whether you are the “primary custodial parent” of your child, per written Court Order or written agreement between you and the other parent.

If you are not the primary custodial parent, you have no right to move with child unless and until such time as you are designated the child’s “primary custodial parent.” This will require the Judge to enter an Order naming you the “primary custodial parent,” upon a hearing where you present evidence that you are the child’s main parent, and that you provide the child’s primary residence.

If, however, you are designated the child’s primary custodial parent, and the other parent received your Notice of Intent to Relocate with the child,  he or she may only file his or her objection and a request for the Court to enter a temporary and/or permanent Order prohibiting your relocation, upon a hearing. At the hearing, the Judge will make the decision.

What could happen if I fail to properly serve a Notice of Intent to Relocate?

You may be thinking, “Wow, this sounds like a real hassle. What’s the worst that could happen if I don’t serve the required Notice?” Per statute, there are several ways that you could be “punished” for failing to serve Notice, which could seriously affect your life—better not to risk it!

If you are requesting to relocate with your child, and you fail to provide notice, such failure may result in the following consequences:

  • The Judge may consider the failure “a factor” in his or her consideration of the relocation of the child (which could result in a denial of the child’s relocation);
  • The Judge may consider the failure as “a factor” when deciding whether or not to modify custody and/or visitation;
  • The Judge may order you to return the child, if you moved without giving notice (with or with you, which could mean that the other parent receives full physical custody until the case is decided if you do not move back);
  • The Judge may decide that you are responsible for paying all of the reasonable expenses and attorney’s fees paid by the other party/parties entitled to notice that they spent filing the objection and their request for relief from the Court (and also for retrieving the child, if you refuse to return the child, if the Court so order, and certain other expenses, if deemed reasonable by the Court); and
  • The Judge may find you guilty of indirect contempt of Court for violating a Court Order (since the requirements for relocation with a minor child are statutory, and required to be included in any Order), which can carry with it a fine of up to $500 and a sentence of up to 6 months in jail (plus, you could still be responsible for the attorney’s fees and costs of any party that asked that you be found guilty of contempt of Court).

Does this mean that my move could be delayed, or even completely prohibited?

Yes; a delay or even a prohibition of the relocation is fully possible, but only if you want to move with your child.

If you do want to move with your child, it could take a year or more to decide upon your request to relocate if the other parent of your child objects to your relocation with the child and requests a temporary and/or permanent Order prohibiting the move.

The first possible delay could occur if you are not named the child’s “primary custodial parent,” because you need a Court Order or written agreement with the other parent naming you as such. According to the Oklahoma Supreme Court, only the “person entitled to custody” (interpreted as the primary custodial parent) may relocate the primary residence of a minor child.[5] This stems from an interpretation of Oklahoma law, which states that “[t]he person having custody of a child may relocate the principal residence of a child after providing notice . . .” giving the power to relocate a minor child’s residence to a single parent.[6]

If neither parent is named the “primary custodial parent,” and you share joint physical and legal custody of the minor child, you can file a Motion to Name Primary Custodial Parent with the Court, and have the Judge decide who is the primary custodial parent. If the other parent is named the primary custodial parent, you will need to file a Motion to Modify. You will also need to file a Motion to Modify if the other parent has sole custody of your child, because the other parent is the “primary custodial parent” automatically, by virtue of being the sole custodial parent. Be aware that a relocation may or may not be an adequate change of circumstances for the Court to order a modification of your existing Court Order, so be sure to consult with a lawyer concerning the possible modification.

A second possible delay could be trial preparation—either during the “primary custodial parent” phase (if applicable) or the relocation phase of the case. Although it seems like a relocation is a less complex issue than your underlying child custody, visitation, or child support case, both parties are still permitted to have discovery from one another on the same basis as they do or did in the underlying case. That means that you (or the other party) can issue Discovery Requests, take depositions, issue subpoenas, and etc. Because each of these processes takes time and effort, and each triggers certain deadlines, they can complicate and delay the case.

A third possible delay could occur if the other party asks for a “temporary order hearing,” to determine whether you can move with the child right away—or not.

As the name of the hearing indicates, any Order entered after the “temporary order hearing” is meant to be temporary. That means that the decision made at this point in time will not necessarily reflect the Judge’s final decision about whether or not you can move with your child. For example, the Judge might decide that you cannot move with your child at the moment because the child is in the middle of his/her school semester here in Oklahoma, but maybe the Judge will let the relocation happen once the school semester is over, in the final Order.

It is in your interests to try to get this set for hearing right away, to minimize the potential delay to your relocation.

Finally, the trial itself can delay things, especially if the Court’s calendar is very booked. Typically, a relocation hearing will last anywhere from a half day to two days of trial, depending on the complexity of the issues, and what each side is asking for from the Judge. It can be hard for the Judge to set this much time aside for a trial if the Judge’s calendar is very booked. This means that you may get a trial date months after even your temporary order hearing.

It is best to get everything scheduled as promptly as possible, and to make yourself available for whatever Court dates the Judge offers.

Please keep in mind, though, that if you are not moving with a child, no one can stop you from moving—the only thing that might happen if you neglect to serve the Notice is that there might be a Motion to Modify filed to change custody, visitation, or child support to reflect the change of circumstances caused by your move.

What does the Judge consider when deciding on a Temporary Order regarding my child’s relocation?

Although the Judge’s primary concern will always be your child’s best interests, and whether temporarily ordering the child’s relocation will serve your child’s best interests, there are other factors, by statute, that will affect your child’s relocation on a temporary basis.

For instance, it is possible that the Judge will either enter an Order restraining the child’s move or requiring you to return the child, if you already moved, if the following circumstances apply:[7]

  • You failed to timely serve a Notice of Intent to Relocate to the other persons entitled to visitation and you and the other people entitled to notice neglected to submit an agreed, modified visitation schedule to the Judge for approval;
  • You already relocated the child, without either notice, agreement with the persons entitled to notice, or the Judge’s approval; and/or
  • The Judge decides, after reviewing evidence at a Temporary Order hearing, that it is probable that the Judge will not approve of the relocation of the child at the final trial.

However, the Court may enter an Order permitting the relocation on a temporary basis if the following factors weigh in your favor:[8]

  • You provided timely notice of the relocation, and the Court enters an Order for a modified, temporary visitation schedule; and
  • It is likely that the Judge will approve of the child’s relocation at the final trial (which must be determined at a Temporary Order hearing).

If the Judge ruled on my child’s relocation in the Temporary Order, does that mean that the final Order will be the same?

Not necessarily. The law provides that the Judge cannot “give undue weight to the [child’s] temporary relocation [or non-relocation] as a factor in reaching its final decision,” so while the Judge may consider the Temporary Order, and the effects of that Order on the child and on you, it is just one of the factors the Judge should consider.[9]

When my case goes to trial, what will convince the Judge that I should be allowed to move with my child?

Assuming you’ve already been named the child’s “primary custodial parent,” when your case goes to trial, there will be two “phases,” requiring different kinds of evidence and argument, which are the (1) “good faith” phase, and the (2) “best interests” phase.[10]

First, you have the burden of showing the Judge that your request to relocate is in “good faith.” As defined by Oklahoma statute, you act in “good faith” if you honestly intend to refrain from “taking any unconscientious advantage of another, even through the forms or technicalities of law,” and there is a complete lack of any “information or belief of facts which would render the transaction unconscientious.”[11]  First, you must show the Judge that you are asking to move with your child in “good faith.” If you can do that, then it falls to the other parent to show the Court that the child’s relocation is not in the child’s best interests.

How do I show the Judge that I have “good faith” reasons to move?

Nearly any reason for moving may be deemed a “good faith” reason, so long as you honestly intend to refrain from “taking any unconscientious advantage of another, even through the forms or technicalities of law,” and there is a complete lack of any “information or belief of facts which would render the transaction unconscientious.”[12] What does this mean? By way of explaining, the following is a non-exhaustive list of reasons for moving that Courts have found to be “good faith” reasons:

  • Enhanced career opportunities;
  • Job offer;
  • Job transfer;
  • Being closer to family;
  • Cultural opportunities for the child;
  • Educational opportunities for the child;
  • Sporting opportunities for the child;
  • Improved financial outlook for the relocating parent and/or his/her family; and
  • Moving with a spouse.

If I plan on moving, even if my child cannot come with me, is that going to destroy my case?

No; if you otherwise have a good case for the child to move with you, the fact that you will move, regardless of whether the child goes with you, should not destroy your case as a matter of law. By statute, the Judge is prohibited from considering your intent to relocate, regardless of the decision on the child’s relocation, as a factor.[13] That said, practically speaking, the Judge could still rule against you and cite other reasons for his or her decision, so be careful what you say!

What could convince the Judge that my child should not move because it is not in his or her “best interests”?

Because the Oklahoma Supreme Court clarified that “. . . in the absence of evidence showing prejudice to the child, a custodial parent has a presumptive right . . . to move with the child and establish a new residence,” a parent opposing the relocation must show “prejudice to the child”—that is, that the relocation is not in the minor child’s best interests.[14] Mandatory factors that the Court must consider when deciding whether or not a relocation is not in the child’s best interests, where no one factor necessarily outweighs another, include:

  • The impact of a relocation on the child’s relationships, both with the parents, and with other relatives and significant figures to the child, considering the quality of any such relationship (who is the child going to miss?);[15]
  • How the relocation will affect the child based on the child’s “age, developmental stage, needs of the child . . . physical, education, and emotional development, taking into consideration any special needs of the child” (is the child ready and able to move, without major consequences?);[16]
  • Whether the Judge can feasibly modify visitation and/or custody to preserve the relationship between the child and the nonrelocating parent, with due consideration to the “logistics and financial circumstances of the parties” (can you both afford the time and expense of regular long-distance visitation?);[17]
  • Where and with whom the child prefers to live, primarily, where the child’s preference will be assessed with due regard to the child’s age and maturity (who does your child want to live with, and where?);[18]
  • Whether the relocating parent is likely to “promote or thwart the relationship of the child and the nonrelocating person,” with consideration to any “established pattern of conduct” on the part of the relocating parent (is the other parent going to be able to show the Judge that you have not promoted the child’s relationship with the other parent?);[19]
  • If moving the child’s residence will improve your quality of life, and/or the quality of the child’s life, whether financially, emotionally, educationally, or otherwise (is the move an upgrade for you and your child?);
  • Any reasons you might have for moving, or that the other parent may have for objecting to the move (are there other reasons, not listed above, that show this move is a good idea, or that the other parent might present to show the move is not a good idea?); and
  • Any other factor affecting the best interest of the child.

Again, the burden is not on you, as the custodial parent, to show the Judge that it is in your child’s best interests to move. Instead, the other parent must show that the move is not in the child’s best interests. Nevertheless, this means that you should be prepared to show the Judge all the advantages of the relocation, to undercut the other parent’s argument against it.

[1] This could include your ex-spouse, parent of your child, grandparents with visitation rights, guardians for your children, and etc.
[2] You can access this relocation statute, which describes everything you need to know about relocation, here.
[3] The statute does not specify that this is required only if you are moving with the child, but because people have a Constitutional right to freedom of travel (see, e.g., Saenz v. Roe, 526 U.S. 489 (1999)) an objection is only valid to prevent a child from relocating when made to protect the child’s rights to relationships with any person granted rights to custody of or visitation with them.
[4] See, e.g., Saenz v. Roe, 526 U.S. 489 (1999).
[5] Boatman v. Boatman, 2017 OK 27, ¶ 18.
[6] Oklahoma Statute title 43, § 112.3(G)(1) (emphasis added).
[7] See Oklahoma Statute title 43, § 112.3(H)(1).
[8] See Oklahoma Statute title 43, § 112.3(H)(2).
[9] See Oklahoma Statute title 43, § 112.3(J)(2)(a).
[10] See Oklahoma Statute title 43, § 112.3(K).
[11] See Oklahoma Statute title 25, § 9.
[12] See Oklahoma Statute title 25, § 9.
[13] See Oklahoma Statute title 43, § 112.3(J)(2)(b).
[14] Abbott v. Abbott, 2001 OK 31, ¶ 8 (citing Kaiser v. Kaiser, 2001 OK 30). See also Oklahoma Statute title 43, § 112.3(K) and 112.2A.
[15] Oklahoma Statute title 43, § 112.3(J)(1)(a).
[16] Oklahoma Statute title 43, § 112.3(J)(1)(b).
[17] Oklahoma Statute title 43, § 112.3(J)(1)(c).
[18] Oklahoma Statute title 43, § 112.3(J)(1)(d). Please note that the child’s preference may also be a factor when determining visitation and custody, though the Judge will not be bound by the child’s preference. See Oklahoma Statute title 43, § 113. This is dependent on whether or not the child is of an age and is mature enough to express an “intelligent” preference, though a child is presumed to be sufficiently mature to express a preference at age 12, per Oklahoma Statute title 43, § 113(C), though this presumption may be rebutted by evidence to the contrary.
[19] Oklahoma Statute title 43, § 112.3(J)(1)(e).

[Disclaimer: The information in this article is for only informational purposes. It is not legal advice and does not create an attorney-client relationship.]

By: Melissa F. Cornell, Arbitrator at Two Goats Solutions and Owner of CORNELL LAW FIRM; and Courtney Najera, Associate Attorney