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September 29, 2004
Impact of Possible Future Relocation of Parent
In re Marriage of Perry discusses at length the impact of a possible future interstate relocation by one parent on child custody in an original custody order:
The right of interstate travel is a basic constitutional freedom. Memorial Hosp. v. Maricopa County, 415 U.S. 250, 254, 94 S. Ct. 1076, 1080, 39 L. Ed. 2d 306, 312 (1974). Any infringement upon the fundamental right to travel must be justified by a compelling state interest. Id. at 258, 94 S. Ct. at 1082, 39 L. Ed. 2d at 315. While the court cannot foreclose in advance the right of a custodial parent to move elsewhere, it can set forth provisions to protect the rights of the non-custodial parent in such an event. In re Marriage of Welbes, 327 N.W.2d 756, 758 (Iowa 1982). To temper the custodial parent's decision to move following the entry of a dissolution decree, Iowa Code section 598.21(8A) provides that a move one hundred fifty miles or more from the residence of the child at the time of the original decree may be considered a substantial change of circumstances. Iowa Code § 598.21(8A) (2001). The purpose of this section is to maintain the relationship of the child with the non-custodial parent. In re Marriage of Williams, 589 N.W.2d 759, 762 (Iowa Ct. App. 1998).
The trial court is obligated to make a decision on physical care based upon the facts existing as of trial, not on speculation on "whether a parent may move at some future date." The remedy for the non-custodial parent if the custodial parent later does in fact relocate is to file a modification of the dissolution decree. See, Iowa Code § 598.21(8A).
Posted on September 29, 2004 in Custody | Permalink
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Main
| How is custody determined? »
September 29, 2004
Impact of Possible Future Relocation of Parent
In re Marriage of Perry discusses at length the impact of a possible future interstate relocation by one parent on child custody in an original custody order:
The right of interstate travel is a basic constitutional freedom. Memorial Hosp. v. Maricopa County, 415 U.S. 250, 254, 94 S. Ct. 1076, 1080, 39 L. Ed. 2d 306, 312 (1974). Any infringement upon the fundamental right to travel must be justified by a compelling state interest. Id. at 258, 94 S. Ct. at 1082, 39 L. Ed. 2d at 315. While the court cannot foreclose in advance the right of a custodial parent to move elsewhere, it can set forth provisions to protect the rights of the non-custodial parent in such an event. In re Marriage of Welbes, 327 N.W.2d 756, 758 (Iowa 1982). To temper the custodial parent's decision to move following the entry of a dissolution decree, Iowa Code section 598.21(8A) provides that a move one hundred fifty miles or more from the residence of the child at the time of the original decree may be considered a substantial change of circumstances. Iowa Code § 598.21(8A) (2001). The purpose of this section is to maintain the relationship of the child with the non-custodial parent. In re Marriage of Williams, 589 N.W.2d 759, 762 (Iowa Ct. App. 1998).
The trial court is obligated to make a decision on physical care based upon the facts existing as of trial, not on speculation on "whether a parent may move at some future date." The remedy for the non-custodial parent if the custodial parent later does in fact relocate is to file a modification of the dissolution decree. See, Iowa Code § 598.21(8A).
Posted on September 29, 2004 in Custody | Permalink
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