The Importance of the Initial Custody Determination in a Move Away Case

By Richard A. Marcus, Esq.


In the context of “divorce” or dissolution proceedings, there are two types of orders regarding custody. First, there is the “pendente lite order.” This is a temporary order which remains in effect while the proceeding is pending and before a final judgment. The second is the custody award contained in the final judgment. Even though the parties may have a final judgment, because custody orders are subject to change while the children are minors, there always exists the possibility that a custody order many be modified, even if “final.”

The “move away” case is a perfect example of this. “Move away” cases occur when one parent wants to relocate with the minor child or children. They may occur with respect to pendente lite orders or after a final judgment. While courts cannot restrict a parent’s right to move, they can however order that if the parent moves, the other parent may be awarded custody.

The rules with respect to what standards the courts have to follow in making a custody determination can be quite complex. And, in this particular area, Judges are given wide discretion to make the determination. As long as they indicate the criteria that they have considered, it is very difficult to challenge the court’s ruling. An exception to this rule exists if the Judge makes an error of law. In this context, it means that the Court applies the wrong rule.

Here is an example which explains why the initial award of custody is so important. Let’s assume that there is a final judgment of divorce. Dad’s visitation amounts to 25% of the time and mom is the primary caretaker having the child 75% of the time. Under these rules, the parent with primary physical custody of the children has the presumptive right to relocate with the children; and no custody modification will be ordered on that basis unless the proposed move would result in prejudice to the children's rights or welfare. The burden is thus on the non-moving parent to demonstrate prejudice.