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Family Law: Parent’s Right to Travel

Introduction

In the US, each state has different child custodial laws that stipulate the requirements that have to be met by parents who wish to relocate or travel outside their states. When solving these cases, courts have to be cautious not to infringe on individual’s constitutional rights to travel. Similarly, courts have to ensure that their decisions represent the best interests of the children. According to family court judges involved in settling relocation cases, relocation cases are the thorniest cases to adjudicate. Other family cases such as child abuse and domestic violence have clear guiding principles on how to settle them hence their judicial outcomes are often apparent. In contrast, travelling and relocation cases are complex with no clear guiding principles. As such, relocation cases usually involve two antagonizing parents. Usually, these cases involve one parent with sound reasons for relocation and the other with equally sound reasons for opposing the relocation. In this view, this paper seeks to analyze the parent’s right to travel, and outlines why travelling has been an issue for both the parents and the courts.

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Reasons for travelling

After divorce, parents are required by law to always remain in touch and be in close proximity to facilitate access and support for their children. However, this requirement is not always possible. Increase in Global economy has seen many people increase their travelling for employment reasons (Herring, 2004). Equally, people who wish to remarry might be forced to travel even outside the country. Similarly, some parents might have to travel outside the country to pursue their own personal interests. Because of increases in travelling, potential issues concerning child custodial cases are now becoming difficult and complicated to solve.

Traveling and the constitutional rights of parents

Prior to analyzing the factual challenges that emerge during travelling cases, it is essential to assess the probability for traveling decisions to contravene on the parents constitutional rights. It should be noted that court’s decision to allow or prohibit a parent from relocating contravenes on the parents’ constitutional rights to travel. In the USA, the courts accept that every individual is permitted by the constitution to travel or relocate within the country or outside the country. This probable contravention is determined by other constitutional rights associated with relocation cases such as parent’s basic liberty, interest in the care, guardianship, and control of their children. In the USA, most courts recognize that a custodial parent’s right to travel outside the country can only be infringed when compelling state’s interests exists (Stahl & Drozd, 2006).

Based on the above constitutional right, several court decisions have been reached in the past. For instance, if a court decides that a parent will lose custody of his or her children because of relocating it is clear that the affected parent’s constitutional rights would have been contravened. Despite of this argument, some courts dispute that the above decision does not contravene on the parents constitutional right to travel even in instances where custody has to be surrendered. These courts assert that the parent’s right to travel or relocate has not been infringed in the above situation since the parent can still be free to travel. On the contrary, most courts in the USA acknowledge that through the above court decision parents constitutional right has been infringed (Stahl & Drozd, 2006). These courts assert that this situation can only be tolerated when compelling states interest to contravene on the rights exist. With the existence of these compelling state interests, more states have come up with measures that ensure custodial parent’s rights and the state’s interests are considered when settling travelling and relocation issues. In the past, it has been noted that some courts do not consider the parent’s right to travel nor do they consider the states compelling interests when they are settling their relocation cases. Instead, these courts consider the best interest of the children when they are making their rulings on relocation and travelling cases. In this regard, there have been proposals for family courts to adjudicate their cases based on children’s best interest rather than on the parent’s constitutional right to travel and compelling state interests.

Why relocation or travelling cases should be ruled based on the children’s best interests

In my opinion, the above proposal should be adopted since in an event of relocation children are the most affected rather than parents. I believe that all family rulings should be grounded in the children’s best interests. As a result, if the above approach should be adopted relocation or travelling would only be permitted once the courts ascertain that the need for relocation has been initiated by the need to improve children’s welfare. Therefore, if courts adopt the above approach they would maximize the opportunity for all parents to contribute to the raising, supporting, and financing their children in their daily needs. Through this approach, the courts will ensure that both parents work with the aim of enhancing their children’s interests rather than on their selfish gains.

By adjudicating cases based on the children’s best interests, courts require the travelling parent to demonstrate why his or her intended move is best for their children. Through this, the parent will be required by the courts to prove that the intended move has been done in good faith and never to hurt the children or the ex-spouse. When parents divorce or separate, one of the spouses might want to relocate far away from the ex-spouse. Such moves are normally initiated by the need to remarry or hurt the ex-spouse by being far away from him or her. In such instances, children will suffer emotionally because their visitation rights would be compromised. To prevent parents from relocating out of these motives, courts should adopt the standard of ruling relocation cases based on the children’s best interests. Through this, the courts would prohibit such parents from relocating or travelling once their ill motives are established. By so doing, the interests of the children would be safeguarded.

Through this approach, the courts would require the parent to establish whether the place he or she plans to relocate is appropriate for the children. By doing so, courts would ensure that children are relocated in appropriate locations that would not harm them physically and emotionally. Equally, through this approach courts can ascertain that both parents have reached into a compromise. Therefore, if the courts grant a parent permission to travel or relocate the courts would be certain that the normal visitation rules are not compromised. Thus, if the courts adopt the standard of adjudicating relocation cases based on children’s best interest more damages to the children’s welfare would be avoided.

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Examples of cases that have been ruled in favor of the children’s best interests

In Virginia, family courts rule cases in favor of the children’s best interests. This general rule has been reaffirmed during the following land rulings Carpenter verses Carpenter case, Gray verses Gray case, Simmons verse Simmons case, and Boisseau verses Scott case (Stahl & Drozd, 2006). In California, California Supreme Courts LaMusga Ruling of the year 2004 have influenced current relocation cases. During Lamusga Ruling, a mother was seeking to relocate with two of her children 2, 400 miles far away from her ex-husband. With the father of the kids objecting the move, the mother moved to court to seek permission for relocation.

During the child custodial analysis, the courts identified that the mother’s relocation initiatives were going to affect the children’s relationship with their father severely. Similarly, based on the mother’s previous conduct the Court established that she was not enthusiastic of the father’s child support. Even though, the mother’s request to relocate was made in good faith, the trial courts ruled that the relocation could not be made possible, as the move could jeopardize the relationships the children had with their father. Equally, the court adjudicated that the children’s mother could lose the custody of her children to their father if she pushed on with her initiatives. Following the trial court’s ruling, the mother of the two children appealed her case in the California Supreme Court. After careful analysis, the courts sided with the father and ruled that if the woman was going to be allowed to relocate, children’s best interests were going to be compromised. Similarly, through this court ruling the Supreme Court reversed the trial court judgment of transferring children’s custody to the father.

Factors that courts should consider when analyzing relocation cases to ensure to safeguard the interest of the children

In order to ensure that the children’s interests are safeguarded, the courts should examine the children’s abilities to adjust to the new locations their parent is planning to relocate (Stahl & Drozd, 2006). Through this, the courts should consider the degree of emotional attachments the children have formed with both parents. The ages of the children will greatly determine these factors. Therefore, courts should note that children below the age of two years would not be able to cope up with being separated especially with their mothers. Equally, the courts should note that children need normal development stages that can be enhanced through regular visits by the non-custodian parents. As such, when administering their judgments courts should note that if a child is deprived the contact with both parents by allowing one of non-custodial parent to relocate far away from the child, the child’s right to develop secure contact with both parents is contravened. According to the sociologists, grown up children can easily maintain a healthy relationship with their absent parents unlike younger children. Therefore, the age of the child should be considered critically by the courts before they administer their judgments on family relocation cases.

Another factor that should be considered by courts when deciding on relocation cases is the relationship the children have with their parents (Stahl & Drozd, 2006). Therefore, through the above-proposed approach fears of children losing existing relationship with their parents when they travel can be reduced. The fears will be reduced because the courts are going to require the relocating parent to not only prove that his or her motives are geared towards enhancing the child’s interest, but also prove that the existing relationship between the children and both parents would not be compromised. Thus, the courts should ensure that their judgments are ruled in consideration of children’s relationships with their parents.

Alternatively, the quality of the children’s communication and cooperation with their parents should be considered by the family courts. For instance, if courts establish that a parent has been violating some visitation rules he or she has no need to be given permission to relocate (Stahl & Drozd, 2006). If given the permission, such individuals would continue with his or her violations and may damage the existing relationship with the kids severely. Given that relocation may incur some great challenges to the wellbeing of the children and the spouse left behind, courts should consider asking the parents to attend mandatory family counseling sessions before their cases is fully settled.

Usually, parents may relocate or travel to other countries through court order or upon the agreement of both parents. Before a parent travels outside the country, he or she should take time to analyze the parent parenting plan or child custodial ruling of their jurisdiction. Some states require parents to give notice of their travelling. In this regard, the travelling parent should produce a notice within the given period. Failure to comply with this may jeopardize travelling request. Equally, before processing travelling requests, a parent should analyze child custodial laws applicable in their states. In the USA, each state has distinctive child custodial laws (Stahl & Drozd, 2006). For instance, some states require written consent from both parents before warranting a parent to travel outside the country. Therefore, parents are advised to seek counsel from family lawyers before proceeding with their travel processing. Notably, when resolving cases involving the parent’s rights to travel courts lay emphasize on the impacts the travelling will have on children. As such, for travelling to be warranted travelling initiatives should prove that they are aimed at improving the children’s welfare (Standley, 2001). Benefits of increased opportunities and pays associated with international relocation should not outweigh the child’s best interests. Based on the above analysis, it is apparent that courts consider the significance of the financial, economic, child’s interests, and other family reasons when solving cases that involve parents’ rights to travel.

When a parent wants to travel outside the country with the children, the courts require that he or she seek permission from the other parent (Stahl & Drozd, 2006). When the other parent refuses to grant permission, he or she is required to seek the court’s permission. In case a parent fails to seek the other parent’s permission or the court permission, he or she will be liable to abduction charges (Youngman, 2012). Therefore, the travelling parents must be willing to produce authentic documents authorizing their travels whenever requested for by the immigration officers. Usually, custodial parents who are planning to travel outside the country are advised to seek the advice from the judges who ruled their custodial basis to prevent reprisal from the ex-spouses.

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Conclusion

From the above analysis, it is apparent that solving relocation cases from the children’s best interest perspective is more appropriate than any other perspective. Proponents argue that solving these cases from this perspective will preserve the relationships that exist between the parents and their children (Stahl & Drozd, 2006). According to them, if the family courts adjudicate these cases with the aim of safeguarding the children’s interests, the need for regular visitation will militate against relocation. On the other hand, critics argue that with the adoption of this standard relocation will be limited. According to them, such initiatives will contravene the parent’s constitutional right to travel. Therefore, it is apparent that with the existing polarized positions courts and other relevant stakeholders should carry out comprehensive research to ease the situation. For the family judges to come up with sound rulings, they are supposed to be provided with concrete researches on the impacts of relocation on children. Through this, they can determine accurately the aspects of children’s best interests. In this respect, it will be crucial for judges and legislators to analyze social sciences researches regarding the roles parents play in family institutions. During these examinations, they should analyze difficult situations that often arise when relocations are necessitated. Similarly, they must identify complex provisions that have to be put in place in such situations. In my opinion, a movement from the usual approaches to one that emphasizes on the children’s best interests is ideal. Above all, all rulings should weigh the risks that will come up when relocation is allowed or rejected.

In conclusion, it is apparent that in the future courts are going to be faced with more challenging travelling and relocation cases as the need for travelling increases (Stahl & Drozd, 2006). Therefore, courts should formulate appropriate standards that will ensure that parent’s rights to travel are not infringed and children’s custodial rights are safeguarded. These standards can only be met if the courts make sound decisions that are aimed at protecting children’s best interests. Similarly, parents should only be allowed to travel outside the country when they have obtained permission from their ex-spouses and courts.

References

Cretney, S. M. (2000). Family law (4th ed.). London: Sweet & Maxwell.

Herring, J. (2004). Family law (2nd ed.). Harlow, England: Pearson Longman.

Stahl, P. M., & Drozd, L. (2006). Relocation issues in child custodial cases. New York: Haworth Press.

Standley, K. (2001). Family law (3rd ed.). Basingstoke: Palgrave.

Youngman, A. (2012). International parental child abduction (9th ed.). Washington, DC: U.S. Dept. of State, Bureau of Consular Affairs.

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