Rhode Island is the Children's Home State. Can the Custodian Parent Move out Of State for a Job?
January 22, 2014
Authored By: Christopher Pearsall, RI Divorce Attorney
a.k.a. " The Rhode Island Divorce Coach ℠ "
Question: Can the custodian parent move with with children to another state because of a new job if there is a court order stating that Rhode Island is the home state of the children?
Reponse: No. If you have joint legal custody or this would prohibit you from having your scheduled parenting time with your children, then a parent is not supposed to make that unilateral move. A parent with physical placement of the children must file a Petition for Relocation / To Move Out of State with the Minor Child(ren) in the Rhode Island family court, particularly if Rhode Island is stated in the Court's Order that Rhode Island is the "Home State" of the minor child(ren).
However, some parents do it just the same and file the petition afterward. Of course after the fact it is very hard to expect the court to order the parent to move back into the State of Rhode Island with the children. However, it is possible. It is also possible that if the court finds that the move was not in the best interests of the minor child(ren) if the parent makes the move first, it is entirely possible that the family court judge could find that is it in the best interests of the minor child(ren) to be placed with the parent who remained in the State of Rhode Island.
If you suspect that the parent would leave with the minor child(ren) to another state, it is best to be proactive and file an action in the family court with an Ex Parte Motion and supporting affidavit demonstrating why you have the reasonable belief that the custodial parent will take the child(ren) to another state. It is possible that the Court will issue a Temporary Ex Parte Order based upon your initial Ex Parte Motion if the court doesn't issue an immediate Order prohibiting him or her from moving to another state.
Typically the Ex Parte Motion asks for immediate emergency relief based upon what you know and represent to the court in your affidavit. However, there must be an underlying action filed for permanent relief. Very often the underlying action is a Motion for Change of Placement or a Motion to Preclude the Relocation of the Minor Children Outside the State. The grounds used are that it is likely to cause "irreparable harm" to the child(ren) based upon their strong psychological relationship and ties with Rhode Island, including the other parent, friends, extended family, church, extracurricular activities, etc. The same grounds might be used, in part, for a change of placement of the children to the non-custodial parent. You would obviously be asking that an Emergency Order immediately issue until such time as the custodial parent files a motion for the relocation and the matter can be heard on it's merits. This is not something that is easily done. You only get one shot at it and if you blow it you may find that if you are the non-custodial parent that suddenly your children are gone to another state despite your attempts to prevent it. I strongly recommend seeking the assistance of an experienced family law lawyer.
Best of Luck to You!