New Hampshire Bar Association
About the Bar
For Members
For the Public
Legal Links
Online Store
Vendor Directory
NH Bar Foundation
Judicial Branch

Set Your Business Apart - Advertise with NH Bar News!

Visit the NH Bar Association's Lawyer Referral Service (LRS) website for information about how our trained staff can help you find an attorney who is right for you.
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency
Member Login
Member Portal

Bar Journal - September 1, 2001

The Parent Trap: Tomasko v. Dubuc - Relocation and the Custodial Parent Rights



Relocation is an increasingly prevalent issue requiring carefully crafted and articulated standards. The prevalence of divorce, coupled with rising awards of joint custody, creates an unparalleled need for guidelines to determine whether relocation of a child or children with the custodial parent is prudent.1 Due to increased mobilization of our technologically advancing society, families are moving more often.2 Relocation cases are complicated due to the constitutional rights involved. An appropriate standard should balance the custodial parent's constitutional right to travel against the non-custodial parent's visitation rights as articulated in the initial custody decree.

New Hampshire has not yet adopted a clear standard of this type in either statute or case law. In order to promote uniformity of decisions and finality of initial custody arrangements, New Hampshire needs to implement a standard that can be applied to all relocation cases, appropriately guiding the court's discretion. The New Hampshire Supreme Court had an opportunity to adopt a standard, but declined to do so during the 2000 session in Tomasko v Dubuc.3

This article will address relocation as a complex issue for courts to decide today. In doing this, we will discuss relocation standards currently in use and whether these standards appropriately focus on constitutional issues. Additionally, we will discuss important considerations in forming a standard, the specific considerations in Tomasko, and the upcoming opportunity for New Hampshire to create a defined relocation standard addressing these issues.


The most recent opportunity to establish a standard for relocation occurred last year in the custody case of Tomasko v. Dubuc.4 In Tomasko, the parties in their divorce eight years prior executed a custody agreement for the couple's two children, ages thirteen and eleven.5 The agreement granted joint legal custody, the mother having primary physical custody and the father liberal visitation.6

Mrs. Tomasko remarried in 1993 and purchased a cattle ranch in Montana.7 She petitioned the Court in 1998 to modify the residence restriction in the decree, allowing her to move from New Hampshire to Montana with the children and her second husband.8 The proposed modification included rescheduling visitation rights and a provision for the parties to equally share traveling expenses for the visitations.9 The trial court denied the petition, and Mrs. Tomasko appealed on four different bases: (1) abuse of discretion; (2) violation of right to travel; (3) violation of right to privacy; and (4) improper modification of the custody decree by conditioning Mrs. Tomasko's custody on New Hampshire residency.10

The trial court applied the shifting burden analysis set forth by the Connecticut Supreme Court in Ireland v. Ireland, to the facts in Tomasko.11 The Ireland standard is a variation on the "best interests" standard and places the initial burden on the custodial parent to prove that the move is for a legitimate purpose and is reasonable in light of that purpose. Once this threshold requirement is proven, the burden then moves to the non-custodial parent to show, by consideration of a set list of factors, that the move is not in the child's best interest.12 The New Hampshire Supreme Court found that because neither party appealed the trial court's application of the Ireland standard, its use was presumed acceptable to the parties.13 However, the New Hampshire Supreme Court explicitly stated that this application was not an adoption of the Ireland standard for New Hampshire relocation cases,14 much to the disappointment of the New Hampshire family law community.

After applying the Ireland standard, the trial court found that Mrs. Tomasko did not have a legitimate purpose for the relocation to Montana and the move was not in the children's best interests.15 The New Hampshire Supreme Court determined that the trial court had not abused its discretion, however the court declined to address the trial court's determination regarding whether the proposed relocation was for a legitimate purpose.16 In affirming the trial court's decision, the New Hampshire Supreme Court conducted an extensive discussion of the Ireland standard, and declined the relocation based on the potentially adverse effects on children's relationship with their non-custodial father.17

On the other three counts, the New Hampshire Supreme Court ruled that by incorporating a standard residency stipulation into the final divorce decree, Mrs. Tomasko waived her constitutional right to travel and right to privacy.18 The residency stipulation read, "LIVING DISTANCE: The children shall reside in the State of New Hampshire unless the Superior Court of the Northern District of Hillsborough County shall otherwise decree."19

The Ireland standard provides a sound framework for relocation decisions by allocating the burdens between custodial and non-custodial parent to avoid the common pitfalls in many variations of the "best interests" standard, as discussed shortly. Additionally, the opinion by the Connecticut Supreme Court provides valuable guidelines that courts should consider in applying the standard. Though the New Hampshire courts applied the Ireland standard to Tomasko, the courts did not articulate consideration of the reasoning outlined in the Ireland decision. These ideas set forth in Ireland are essential to the basis for the standard, which cannot be adequately applied without their consideration.


Unlike earlier traditional custody structures, the increase in joint custody awards creates circumstances where it is essential to have a solid relocation standard. Throughout the evolution of custody law, a shift occurred in the presumptions regarding which parent would be the preferred custodial parent. Past presumptions were generally clearly defined based on the parent's gender. With the rise of joint custody, gender is not a factor, and clear rules no longer exist.

Many states have codified the presumption of joint custody as being best for the child. In joint legal custody, each parent generally has a legal right to equal participation in decisions affecting the child's well being. When joint physical custody is in place, generally both parents enjoy equal time with the children rather than a traditional custodial/non-custodial parent arrangement. Joint physical custody is rare and virtually impossible to maintain in the case of relocation. In joint legal custody arrangements, relocation is possible, but raises difficult questions as to the potential for involvement of the non-custodial parent in the child's life, including important decisions, from afar. The present presumption in favor of joint custody awards gives far less guidance to the courts as to which parent is preferable in a custodial role. Because of this, relocation can be a far more difficult question than in the past.

Early Custody Laws

Early custody law followed property law and until the twentieth century, children were considered chattel and, therefore, owned by their fathers.20Children would either work for their fathers or guardians or were contracted out as indentured servants or other types of laborers. At that point in history, women were allowed very little rights and, as such, held no custody rights while the fathers were still alive.21Even after the father's death, mothers only had limited rights to custody of their children.22 In 1860, the New Hampshire Supreme Court, in State v. Richardson, articulated the patriarchal slant of custody proceedings at that time.23 The court stated that a father is "the guardian by nature of his child" and is "entitled to custody as against the mother and everybody else."24 The court further acknowledged, "that the father is entitled to the custody of his minor children . . . that he is bound for their maintenance and nurture, and he has the corresponding right to their obedience and services."25Although the court in Richardson recognized the need to consider the child's best interest, it awarded custody to the father, stating that absent any evidence of unfitness, a father is automatically entitled to custody of his children.26

Tender Years Doctrine and the Maternal Presumption

In the 1800s, a social shift began in United States custody law, rejecting the concept of children as a means for providing labor towards the idea of protecting and nurturing them.27 The changing status of women, including recognition of the wife as primary caregiver of the children, contributed to a shift in interpretation of family law in the courts and eventually built a foundation for the "tender years doctrine." This doctrine placed emphasis on the importance of the mother-child bond and recognized the value of a mother's love and care in a child's life.28 The changing role of women established the mother as the domestic partner, caring for home and children, and placed her in the prime role to become the natural choice for custodial parent in the event of divorce.

Maternally presumptive custody awards gained prominence in the 1920s when courts began imposing financial duties on fathers, regardless of which parent had physical custody.29 At this time, a maternal presumption became an inherent part of the standard in custody cases in most jurisdictions. The Wisconsin Supreme Court eloquently expressed this preference in 1921: "Nothing can be an adequate substitute for mother's love . . .. She alone has the patience and sympathy required to mold and soothe the infant mind in its adjustment to its environment."30 Many states reflected the maternal preference with codification in custody laws.31 As social climates changed due to the advent of the women's movement, adoption of the Equal Rights Amendment, and the entrance of many women into the workplace, both fathers and feminist groups challenged the maternal preference.32

As this opposition forced an influx of gender-blindness, the "best interest" standard emerged.33 This standard concentrates on an undefined number of factors, varying by jurisdiction; designed to center the custody order on the child's needs rather than the fitness of either parent. Unfortunately, as discussed later, if not formed and applied correctly, the "best interest" standard can result in high application costs due to the extreme amount of individualized attention a court must pay to each case, and often can become a competition between the parents for custody.

Joint Custody

Following the emergence of the "best interest" standard, dramatic changes in custody law followed when many jurisdictions adopted statutes requiring gender-neutral custody decisions.34 Today, laws requiring gender neutrality in custody disputes exist in most states, including New Hampshire, many giving preference to joint custody.35 The movement toward joint custody in New Hampshire is well illustrated in Justice Douglas's 1979 dissenting opinion in Starkeson v. Starkeson, where he supported a shift to joint custody against a rigid majority opinion.36 In Starkeson, the majority recognized joint custody as "a solution in a proper case" based on the trial court's discretion, but rejected it as the norm.37 While the court rejected a presumption of joint custody in Starkeson, it, in essence, created the equivalent of a joint physical custody arrangement by granting the non-custodial father "liberal visitation rights" and allowing for "almost as much free time with the child" as the custodial mother.38

In his dissent, Justice Douglas drafted a short historical analysis of custody law and made such remarks as, "parental involvement should be greater than check writing and occasional visiting."39He concluded the dissent by strongly suggesting that the award of joint custody was appropriate in this case and urged its application in the future. 40 Justice Douglas wrote: "The consideration of a presumption of joint custody by trial judges and attorneys may further the best interests of children in divorce cases and assure that equality of rights under the law in this State will not be abridged or denied because of sex."41 Two years later, in 1981, the New Hampshire legislature codified the joint custody presumption suggested in Justice Douglas's dissent in Starkeson.42

The idea that the best interests of a child are served by both parents being involved in that child's life is demonstrated by the presence of the statutory presumption of joint custody in the majority of states. However, in the case of custodial parent relocation, involvement with both parents may not be possible. This issue presents a clash between presumptive joint custody and relocation cases. As joint custody combines with the increased mobility of our society and the ever-growing divorce rate, the challenge of how to resolve the serious issue of custodial parent relocation becomes evident.


Current relocation law is designed to recreate a dissolved family unit consisting of two parents and child, inadvertently forcing the parents together after divorce. However, relocation issues arise precisely because the original family unit no longer exists and the custodial parent seeks alternatives to improve their new life for both parent and child. Constitutional analysis implies a presumption in favor of the custodial parent should be implemented and retracted only if the move endangers the child or is done with malicious intent.43 Undue burdens on the custodial parent, forcing them to remain in or out of a state, revoking custody, or even reexamining the custody arrangement can violate constitutional rights including the right to travel, right to privacy and autonomy, and the right to home and parent.44

Currently, courts analyze relocation cases using the "best interest" standard, and its variations, or the change of circumstances standard without establishing continuity between the decisions. Many of these standards are fundamentally flawed since they prevent finality and clarity of the custody arrangement for the custodial parent, non-custodial parent, and most importantly, the children.


Right to Travel

The right to travel is one of the basic and oldest guarantees of our country, articulated as long ago as 1777 in the Articles of Confederation. The Articles of Confederation provided that "'the people of each state shall have free ingress and egress to and from any other state . . ..' This principle encompasses the right of individuals 'to migrate, resettle, find a new job, and start a new life.'"45 The United State Supreme Court continues to recognize the right of the individual to travel freely throughout the United States without undue burdens and restrictions.46 "We are all citizens of the United States; and, as members of the same community, must have the right to pass and re-pass through every part of it without interruption, as freely as in our own States."47 This right is guaranteed unless the state has a compelling interest that justifies a reasonable restraint on that constitutional right. Many relocation standards fail to properly address these issues entirely, while others acknowledge the custodial parent's right to travel but circumvent that right.

Some relocation approaches place unconstitutional burdens on the right to travel, despite the fact that this right has existed as long as our nation. In Shapiro v. Thompson, the decision invalidating state legislation denying welfare benefits to a person until in-state for over a year, the United States Supreme Court, stated that the right to travel was unduly hindered, hampering a right that had been recognized even before the ratification of the Constitution.48 The Court also stated that denying or burdening the right to travel, or any other constitutional right, is unconstitutional unless a compelling state interest exists.49 The Supreme Court recognizes that the right to travel is "broadly assertable against private interference as well as governmental action."50 It is a virtually unconditional personal right guaranteed by the Constitution.51

There is an argument that the right to travel is not burdened because the custodial parent can travel without the child. This argument forces the custodial parent to make a choice between exercising his or her right to travel or exercising the right to parent and forgoing relocation. Allowing the custodial parent to only exercise his or her constitutional right to travel by surrendering the right to the parent implies that both constitutional rights cannot be pursued simultaneously. However, constitutional rights are not mutually exclusive; the exercise of one right does not preclude the exercise of another right.52 Laws that control the assertion of personal rights, and have no other purpose than limiting the assertion of personal rights by penalizing those that try to exercise them are patently unconstitutional.53

This restriction on the custodial parent can be viewed as an attempt to zone the custodial parent in the state, an act held illegal by the Supreme Court in Edwards v. California.54 In Edwards, the defendant was prosecuted for bringing an indigent relative from Texas to California, an illegal act under the state laws at the time. In reversing the trial court conviction, the Supreme Court recognized boundaries to the acceptable extent of state legislative activity.55 "The Constitution was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division."56

Similar to Edwards, custodial parent's can be prevented from exercising their right to travel and improve their life through relocation because of their legal status. In Edwards, the mover was indigent, whereas in relocation cases the custodial parent is a divorcee. They can be prevented from moving into a state or from leaving by virtue of a label attached to their status even though this act is contrary to the basis our nation was founded on and declared unconstitutional by our laws.

Undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from or through the territory of any State is a right secured by the Fourteenth Amendment and by other provisions of the Constitution.57

The state may also argue that its interest, manifested in the non-custodial parent's desire to maintain visitation or the welfare of the children, justifies its intrusion and the subsequent burden on the custodial parent's constitutional rights. However, as articulated in Shapiro, only a compelling state interest justifies intrusions on constitutional rights.58 The state can claim that the burden is justified because of the compelling interest the state has in securing the welfare of the child. However, a child's welfare is not the burden of any one state, but rather it is the responsibility of every state to protect a child. A move will not jeopardize this interest, but merely shift the responsibility from one state to another, or, in the case of an intrastate move, to another district. Every state, and the federal government is responsible for the child's welfare; the specific state interest extends as far as ensuring no harm comes to the child and the child is not used as a weapon against the non-custodial parent.59 Additionally, children can benefit from relocation as much as the custodial parent when the custodial parent exercises this right to improve educational opportunities or financial situations.60

Right to Privacy and Autonomy

Some variations of the "best interest" standard allow review of parts of a custodial parent's life that can be overly intrusive. Personal lifestyles often come into the court's view, and with no articulated standard or rule to apply, a judge could be placed in a position where his own values are used as basis for a decision, regardless of the effect the move has on the children.61 Additionally, unless a comparable review of the non-custodial parent's life is conducted, the process is improper.

This inquiry violates another constitutional right, the right to privacy, recognized in Papachristou v. Jacksonville, where the Supreme Court reversed a conviction because an ordinance was so vague that it failed to give the ordinary person fair notice that their conduct was illegal under the statute.62The inability to assess what the statute prohibited allowed enforcement officials unchecked access to citizen's lives, thereby violating the right to privacy. Such ordinances, comparable to inquiries into custodial parent's lives were unconstitutional because they prevented conduct that was a "basic amenity of life" that should be preserved without interference.63 This fundamental concern for liberty applied to relocation cases, infers a right to movement that is beyond state control and protected by the right to privacy.64

States may not place an undue burden on important rights. In Planned Parenthood of Southeastern Pennsylvania v. Casey, Justice O'Connor stated, "a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends."65 Similarly, when a court denies a custodial parent the right to move, it can place a substantial obstacle in the path of that parent's pursuit of the opportunity to improve the life of their child.

Right to Home and Parent

Although a custodial parent's physical custody may be subject to state oversight, constitutionally a custodial parent has the right to raise children, right to home, and modify home. In order to protect that right, the Supreme Court stated that unjustifiable intrusions by the government on the individual's right to privacy are violations of Due Process and the Fourteenth Amendment.66

In relocation cases, a state can prevent a parent from moving by threatening to take his or her children if he or she decides to move without court permission, despite the fact that often the quality of his or her parenting ability is not in question. The Supreme Court opinion in Stanley v Illinois specifically required a finding of unfitness as a prerequisite to revocation of custody.67 In Stanley, an unwed couple that lived together for years had three children. Upon the death of the mother, the children became wards of the state as per Illinois statute. The father appealed, claiming that he had never been declared an unfit parent and therefore was unconstitutionally deprived of his children. The Stanley court held that prior to depriving a parent of custody, the parent must be found unfit through necessary hearings on parental fitness and proof of neglect.68

Constitutional Considerations Review

A constitutional analysis reveals that a great deal of reverence should be given to the custodial parent's decision to relocate. Once the custodial parent proves that the move is designed to benefit the family unit as a whole and therefore to improve the child's environment or opportunities, the move should be considered valid. This presumption protects constitutional rights, including right to travel, privacy, autonomy, home, and parent of the custodial parent, while benefiting the children and assuring continuity by preserving the new family unit. United States Supreme Court decisions recognize the overriding "importance of preserving autonomy, privacy, and choice as being central to the concept of the personhood protected under the constitution."69 Similarly, state courts can restructure their current policy by instituting standards that give consideration to constitutional rights involved in relocation cases.


Some jurisdictions treat relocation as a request to modify the current custody arrangement, while others view relocation as a substantial change that warrants hearings to determine if a change of custody is necessary.70 As stated previously, the paternal preference and later the maternal preference offered some stability in the decision-making, because the preference was clear according to the parent's gender. Although biased, these presumptions provided continuity and predictability for the children as well as the revised family unit. The advance towards selecting the parent most likely to ensure what is best for the child, though certainly far more beneficial for all parties, discontinued this clarity and continuity and removed predictability from custody decisions.

Currently, custody and relocation cases decided under the change of circumstances standard do not permit uniformity nor provide a standard that parents can anticipate and rely on. Custody cases are fact intensive, requiring the judge to analyze hundreds of factors in depth, and often replacing the judgment of the parents with the unrestricted discretion of the court. While this determination may be necessary in the initial custody determination, a repeat performance in the question of relocation is not. 71 The child's best interest was already determined in establishing a custody arrangement. The parents already demonstrated their capabilities to care for their children when custody was determined. Unless the custodial parent has violated the terms of custody arrangement, the inquiry should not be revisited in full. Relocation is better treated as a separate inquiry and not a complete re-litigation of custody.

When the custody inquiry is reopened in relocation cases, finality of the original custody award is denied and implies that any decision to move post-divorce could result in the loss of custody. The custodial parent's desire to move out of state does not per se imply that the non-custodial parent is a better parent or that the custodial parent is no longer a qualified parent justifying a reanalysis of custody. The custodial parent was chosen in the initial custody arrangement as the primary caregiver after considering both parents' fitness. Therefore, the presumption should exist that leaving the child in the care of the custodial parent is best for the child. The custodial parent should not be forced to give up the child who they have cared for and loved for all these years in order to exercise a constitutional right. Finally, the fact that the custodial parent must choose between the rights is inappropriate when the non-custodial parent is free to exercise all of his or her rights by burdening the rights of his or her former spouse. 72


If not properly formed or applied, the "best interest" standard can be one of the most intrusive standards in relocation cases since it requires an in-depth review of the custodial parent's lifestyle in order to allow the court to make a decision. The custody issue begins as a dispute between parents but, under a poorly crafted standard, can evolve into a competition for each to prove their worth before the court by revealing personal areas of their lives in order to win custody. The "best interest" standard should be formulated and applied with caution due to the possibility of constitutional infringement and the intrusive nature of the inquiry.

Issues raised by a "Best Interests" Standard

In a traditional application of the "best interest" standard, the court does an in-depth comparison between the child's current living situation and alternate proposed living situations, such as a change of custody or allowing the relocation. The court requires information designed to envision the life of the child in the proposed new home to compare the child's present life with the custodial parent to one with the non-custodial parent.73 In a "best interests" standard, the custodial parent can be forced to reveal intimate details of their lives to the court in an attempt to retain custody. The court then makes its decision with broad discretion of what is best for the child. This type of analysis can be intrusive and arbitrary because it is time consuming, expensive and burdensome, while providing little guidance to citizens, attorneys, or judges.74

Depending on how the burdens are distributed, the "best interest" standard can require both custodial parent and non-custodial parent to reveal intimate details of their lives hoping to win custody of the child. High application costs can result from the extreme amount of individualized attention a court must pay to each case.

Some variations of the "best interest" standard lack a solid rule for courts to base their decisions on, thereby encouraging the trial court to substitute its judgment of what is best for the child for that of the custodial parent. The result can be limited appellate review and decisions that do not provide lawyers and parties with the predictability and stability that they need from decisions.75 Decisions produced without consistency can prevent appellate courts from finding the trial court abused its discretion because that discretion is so broad.76

Variations of "Best Interests" Standard

Because of the wide discretion in the "best interests" standard, many variations emerged in different jurisdictions providing courts with solid guidelines to make decisions. Many jurisdictions developed different versions of the "best interests" standard to meet their needs, a few of the more prominent ones will be discussed.

In D'Onofrio v. D'Onofrio, New Jersey recognized the existence of the new family unit created by divorce and the benefits that relocation can provide for this new unit. The court in D'Onofrio allowed the custodial mother to relocate the two children to South Carolina despite objections from the non-custodial father.77 This court appropriately recognized that the nature of the parental relationship with the children is a different quality than when the parents operated together as a single-family unit.78 The D'Onofrio court recognized this new family unit and chose to reinforce the continuity and stability of that new family by supporting the move with the custodial parent rather than attempting to recreate the pre-divorce family.79 To reject the custodial parent's motives to relocate often "overlooks the value for the children that strengthening and stabilizing the new post divorce family unit can have in a particular case."80

Another variation of the "best interest" standard was articulated by the New York Court of Appeals in Tropea v. Tropea.81 According to Tropea, there should be no presumption in favor of either parent. Instead the decision should be based upon a non-exhaustive list of factors, later incorporated into the Ireland standard discussed below, which must show "by a preponderance of the evidence that a proposed relocation would serve the child's best interests."82 Where the burden is not assigned to either party, both parties feel an obligation to prove their worth as parents to ensure a favorable decision. There is no limit to what a judge could inquire into or who would have the burden of producing proof. In the standard for Tropea, discretion is endless. As the Ireland court later stated, the Tropea standard demeans the initial trust shown by the court in the original custody decision.83 This prevents finality and creates opportunity for re-litigation of custody. In his article, Child Custody and Relocation: A Constitutional Perspective, Arthur LaFrance, author of numerous public interest law review articles and current professor of law at Lewis and Clark Law School, articulated the effects well when he stated:

The vagueness and discretion left to the judge prevents resolution of decision-making. These standards are inappropriate because finality and clarity, central values of justice, are not met in these instances as these standards allow the decision to be reconsidered over and over, preventing resolution of the case, and, most importantly, prevents resolution for the family. Finality and clarity are themselves central values of justice, important to the best interest of the child.84

Tropea recognized the concept articulated in D'Onofrio of the divorced family as a different entity than the marital family and the potential improvement of a child's life from relocation.85 The court stated, "like Humpty Dumpty, a family, once broken by divorce, cannot be put back together in precisely the same way."86 The adoption of the idea of the new family unit from D'Onofrio combined with the comprehensive list of factors articulated in Tropea, laid the foundation for a more efficient standard to emerge in Ireland v. Ireland.

The Ireland standard, utilized by the Connecticut Supreme Court, and the New Hampshire courts in Tomasko, is a variation that successfully addresses constitutional issues discussed later and avoids the problems of previous "best interest" standards. By using a shifting presumption test and taking into account the list of factors articulated in Tropea, the standard manages to address constitutional considerations while still serving the best interest of the child and the family unit. The Ireland standard first requires the custodial parent demonstrate a legitimate interest for the move and that the proposed location is reasonable to fulfilling that interest. The burden then shifts to the non-custodial parent to prove the move will not be in the best interest of the child. Specifically, the court looks at the factors provided by the court in Tropea: 1) each parent's reason for opposing or desiring the move; 2) quality of relation ship between child and custodial parent compared to relationship between the child and non-custodial parent; 3) impact of the move on the quantity and quality of contact between child and non-custodial parent; 4) degree to which the custodial parents and child's life may be enhanced; 5) feasibility of preserving the relationship between non-custodial parent and child via visitation; 6) negative impact between custodial parent and non-custodial parent; and 7) affect the move may have on extended family relations.87

By using the shifting burden, the Ireland standard eliminates the need for competition between parents by requiring specific showings from each. Because each parent can focus on proving only his or her portion of the burden, there is a less invasive nature to the inquiry. In addition, the factors provide a solid foundation for the court's decision. Since the court only requires the custodial parent to prove a legitimate interest that will benefit the child, it is far less restrictive of constitutional rights.

Standards reviewed

The current standards used by courts can be intrusive and have random analysis. Courts must provide citizens with an articulated standard to rely on that does not unnecessarily burden the rights of the parties involved. In order to preserve and respect the privacy rights, right to autonomy, home and parenting, courts must find another way to approach cases involving the right to travel.

By preventing a custodial parent from traveling with their child for legitimate reasons including marriage and education, the "best interest" standard can embroil constitutional rights to parent and travel. Courts and legislatures should formulate and apply a "best interest" standard with caution, to avoid sacrificing one constitutional right in order to preserve another. Custodial parents can be denied their right to parent because they choose to exercise the constitutional right to travel. Exercising one right, no matter how legitimate the intention, should not be a basis for denying another. Denying relocation not only affects several important constitutional guarantees but also by barring custodial parents from moving with their children, these decisions inhibit the ability to move freely in order to enhance opportunities.88 These rights are not mutually exclusive, the constitution preserves all rights simultaneously, not one in lieu of another as implied by some states' "best interest" analysis. In addition to failing to provide parties with continuity, a custodial parent's constitutional ability to relocate can become limited for discretionary reasons since courts are free to make judgments based on their own morals.89


Progression of Relocation in New Hampshire Case Law

Little case law exists in New Hampshire dealing with relocation. In the few cases that are available, an undefined "best interest" inquiry has been applied. The result is decisions that are unpredictable and provide little guidance to attorneys and litigants in relocation cases. Because incidents of relocation are rising, and will continue to rise, courts should provide solid guidelines to provide predictability for all parties involved.

In 1928, the New Hampshire Supreme Court addressed relocating a child outside of the state to a non-parental third party in Butler v. Butler. In Butler, the court upheld the relocation and recognized the benefits of saying, "it is often for the best interest of the children that they be sent to another state for the purpose of education, health, support or residence." 90 Additionally, the court noted that the non-custodial parent's right to access to the child is important, however the "interest of society and the welfare of the children" are the highest concerns.91 It is this interest that the Butler court recognized as providing the authority on which courts are permitted to exercise discretion in making custody decisions for minor children.92

Six years later the court addressed the relocation issue again in Turner v. Turner. In this complex case the court granted a divorce to Mrs. Turner four years prior to this action on the grounds of extreme cruelty.93 A month after the divorce, Mrs. Turner, the custodial parent, applied for and obtained passports to take her son to France. The non-custodial father, who was permitted visitation with the child for short periods, petitioned for modification of custody. The court modified custody, awarding the child to the paternal grandmother. Two years later, in December 1932, the order was vacated and, for unspecified reasons, the child was committed to the Protestant Orphanage in Nashua. In May 1933, Mrs. Turner moved that she be permitted to take her son to France for the summer under conditions set by the court. Mr. Turner opposed the motion because it would be an unreasonable infringement on his right to see the child.94

The court considered the child's best interests and denied the motion for two reasons. First, based on the fact that Mrs. Turner already tried to take the child to France without notification to Mr. Turner, the court recognized the possibility that Mrs. Turner would not comply with any conditions the court imposed. Additionally, the court reaffirmed the proposition set forth in Butler that the non-custodial parent's right to see his son is an important one, and added the element that it should not be jeopardized unless the visitation affects the child's welfare.95 This decision furthered the slowly moving trend toward joint custody in the courts that, where possible, it is beneficial to have both parents involved with their child.

The court addressed relocation again later in Houde v. Beckmeyer, decided in 1976.96 In Houde, the parties divorced six years prior to the action by a decree incorporating a stipulation requiring written consent from both parties to remove the child from New Hampshire for permanent residence.97 After unsuccessfully petitioning for modification, the custodial mother removed the child to Washington State without the non-custodial father's consent. In this response to a petition filed by the father for change of custody, the court stated, "we have expressed a judicial reluctance to modify an existing custody relationship and imposed upon the party seeking the modification a heavy burden of persuasion."98 Though the custodial mother had violated the stipulation in the divorce decree, the court decided that change of custody would be more disruptive than the move and was not in the child's best interest.99 This decision, though not saying so specifically, followed the trend from New Jersey Supreme Court's decision previously that year in D'Onofrio, finding an important interest in protecting the new family unit of the non-custodial parent and the child. However, at the same time, the decision warned custodial parents that they have a hurdle to overcome to prove that relocation is best for the child.100

In a more recent case addressing relocation, Halliday v. Halliday, decided in 1991, the custodial mother appealed a final divorce decree issued by the superior court. The decree stated that she must obtain either prior written consent from the non-custodial father, or permission from the trial court, to move the children's primary residence out of New Hampshire.101The mother objected to this condition because the non-custodial father was stationed out of the country in the military, and moving would not affect his visitation or contact with the children.102The court declined to consider the plaintiff's constitutional right to travel argument because it was not properly preserved for appeal.103 In addition, the court rejected the argument that the condition was not justified because the non-custodial father was stationed overseas and his visitation rights would not be affected.104 The court stated that it has wide discretion in these matters and upheld the stipulation in the divorce decree based on the fact that it did not restrict the custodial mother's moving for a legitimate purpose.105 In Halliday, the court reaffirmed the idea from Houde that the custodial parent has to justify relocation, but further defined that burden using the legitimate purpose test in practice in many jurisdictions today.


In Tomasko, the most recent New Hampshire relocation case discussed previously, the New Hampshire Supreme Court declined to adopt a defined "best interests" standard for relocation cases. The courts instead applied the Ireland standard articulated by the Connecticut Supreme Court, but did not address the reasoning offered by the Ireland court for the legitimate purpose portion of the standard. There is certainly no requirement that New Hampshire apply a standard in the same way Connecticut courts do, however, the reasoning behind Ireland offered a sound basis for why the standard was formed as it was.

In the initial decision in Tomasko, the trial court found that running a working cattle ranch was not a legitimate purpose for Mrs. Tomasko to move to Montana with her children.106In doing so, the trial court may have substituted its own judgment for Mrs. Tomasko's as to what was best for her family. The legitimate purpose prong of a the Ireland standard is in place largely to ensure that a parent is not moving away with the children "merely to frustrate the visitation schedule of the non-custodial parent."107Because the custodial parent was initially judged the proper parent "to make the day-to-day decisions affecting the welfare of child," the Ireland court specifically stated that absent any proof to the contrary, the custodial parent should be presumed to be making the move in good faith.108 Relocating for the purpose of a new employment opportunity or business venture is well recognized as a legitimate purpose for a move.109

Additionally, the Ireland court adopted the legitimate purpose provision set forth by the American Law Institute stating, that "a relocation motivated by a legitimate purpose should be considered reasonable unless its purpose is shown to be substantially achievable without moving, or by moving to a location that is substantially less disruptive of the other parent's relationship to the child."110This further demonstrates the trend toward a presumption that the custodial parent's decision to relocate is in the best interest of the child.

This framework of the shifting burden in the Ireland standard is consistent with the proposition that the custodial parent was initially entrusted with physical custody and the non-custodial parent should bear the burden of proving the decision to relocate unsound. Though, historically states have discouraged relocation, many states now have a presumption that, providing the custodial parent's decision is made in good faith, the relocation is in the best interest of the child.111 This reinforces the concept from New Jersey's D'Onofrio case, that divorce alters the parental relationships and, though involvement of both parents in the child's life is important, makes it unrealistic to preserve those relationships as they existed prior to the divorce.112 Instead, the new family unit of the custodial parent and child should be considered, and "what benefits the unit as a whole benefits its individual members."113 Since the custodial parent was judged the appropriate parent for primary physical custody, the custodial parent's judgment as to what is best for the family unit as a whole should be given a degree of deference.

The New Hampshire Supreme Court wisely declined to address the trial court's decision that Mrs. Tomasko's move was not for a legitimate purpose. In doing so, the court avoided the issue of deciding Mrs. Tomasko's prudence in engaging in the business of cattle of ranching. Rather, the court rested its decision on a finding that relocation was not in the best interest of the children based on the disruption of the relationship between the non-custodial father and the children.114

The trial court further ruled, and the New Hampshire Supreme Court affirmed, that the living distance stipulation in the custody agreement was equivalent to a waiver of the custodial parent's applicable constitutional rights. The ruling that this frequently used stipulation constituted an official waiver of constitutional rights was unexpected and surprising to many in the legal community that use the stipulation. As the New Hampshire Supreme Court pointed out, the stipulation was included by the parties, not the courts and required that the children's residence be restricted to New Hampshire unless a court decreed otherwise.115 The court ruled that Mrs. Tomasko had made a "voluntary, knowing, and intelligent waiver of her right to travel."116 The stipulation would certainly appear to be a prima facie limit on Mrs. Tomasko's ability to travel under the initial custody agreement, however, it seems overreaching to rule that that right is waived indefinitely in order for her to keep physical custody of her children.

Though the constitutional issues were not before the court in Ireland, the court did make reference to the fact that the non-custodial parent is free to move wherever and whenever they wish.117 The Ireland court stated, "that a custodial parent with potentially bright prospects on a distant horizon should not be tethered indefinitely to the noncustodial parent's choice of residence."118 The Ireland court further stated:

The custodial parent, who bears the essential burden and responsibility for the children, is entitled the same option to seek a better life for herself and the children, particularly where the exercise of that option appears to be truly advantageous to their interests and provided that the . . .interest of the noncustodial parent can continue to be accommodated, even if by a different visitation arrangement than theretofore.119

There are many conflicting interests in relocation cases that must be addressed. Simply using a well-crafted standard, such as the Ireland standard, will not address those issues. The court's application must also attend to all interests involved to truly serve the best interest of the new family unit as a whole, as well as the child in particular, by providing finality and clarity for all parties involved.


In establishing a standard in New Hampshire, first and foremost, the best interest of the child must be considered. However, once custody is determined, as proposed in D'Onofrio, there should be a presumption that what is judged by the custodial parent, as good for the new family unit, will be in the best interest of the child. Any move will affect the children regardless if it is a move to another geographical area or a change of custody to the non-custodial parent. New Hampshire should adopt a standard preserving the continuity and stability of the present custodial relationship out of respect for the initial custody determination. The legitimate purpose portion of a "best interest" standard should not serve as an analysis of the viability of a custodial parent's business venture, but rather as a finding that the custodial parent has a good faith reason to move to the proposed location. The custodial parent has already been judged, either by the courts or the parents themselves by agreement, to be the better choice to care for the child full-time. Forcing the custodial parent to prove time after time his or her fitness is inefficient and denies finality. Any standard, as well as courts interpreting that standard, must also factor in the constitutional implications of denying a custodial parent's rights to move.

House Bill 386 before the 2001 Session of the New Hampshire legislature sets forth a standard nearly identical to the Ireland standard. As in Ireland, 458:23-a of HB 386 requires the custodial parent to bear the initial burden of proving, by the preponderance of the evidence, that "(a) [t]he move be for a legitimate purpose; and (b) the proposed location is reasonable in light of that purpose." The proposed standard would then have a shift in burden, as in Ireland, to the non-custodial parent to prove that the move is not in the child's best interests. The factors proposed in this standard are also nearly identical to those of Ireland. The proposed New Hampshire standard would not utilize the last factor in the Ireland analysis considering the affect the move may have on extended family relations. It instead contains two other factors, "Founded cases of child abuse as defined in RSA 169-C; and any other factor affecting the best interests of the child."120

This standard as set forth in HB 386 is a solid foundation from which New Hampshire could build a strong relocation guideline for both the legal community and litigants to rely upon. Considering current trends in mobility and rising divorce rates, relocation cases will abound and a standard will be an absolute necessity in the future. The guidelines provided in this standard considered together with due respect for the original custody agreement and the constitutional rights of the custodial parent will provide decisions truly based on the best interests of the child, as well as a consistent body of law in New Hampshire for future litigants.


Because relocation implicates a great deal of personal rights and broad discretion is given to the courts, a solid standard is necessary to provide litigants, attorneys, and judges with guidelines. A proper standard should take into account the best interest of the child, while aiding to preserve the finality of the original custody order and all constitutional considerations. Only a standard that takes these factors into account can truly serve all parties, as well as, the paramount consideration, the best interests of the child. HB 386 appears to provide this type of standard for New Hampshire. We would encourage its passage and hope that by the publication of this article New Hampshire will have an articulated workable standard.


1. See, e.g., Ireland v. Ireland, 717 A.2d 676, 683 (Conn. 1998) (citing J. Wallerstein & T. Tanke, 30 Fam. L.Q. 305, 310 (1996)).
2. Id.
3. Tomasko v. Dubuc, ___ N.H. ___ , 761 A.2d 407 (2000).
4. Id.
5. Id. at 408.
6. Id.
7. Id.
8. Id.
9. Id. at 408-409.
10. Id. at 409.
11. Id. See also Ireland, 717 A.2d at 682.
12. Ireland, 717 A.2d at 682-683.
13. Tomasko, 761 A.2d. at 409.
14. Id.
15. Id. at 410.
16. Id.
17. Id.
18. Id. at 412.
19. Id. at 408.
20. Gary A. Debele, A Children's Rights Approach to Relocation: A Meaningful Best Interests Standard, 15 J. Am. Acad. Matrim. Law. 75, 79 (1998).
21. Id.
22. Id.
23. State v. Richardson, 40 N.H. 272, 273 (1860).
24. Id.
25. Id.
26. Id.
27. Debele, supra note 20, at 79.
28. Id.
29. See, e.g., Waller v. Waller, 136 S.E. 149 (Ga. 1926).
30. Jenkins v. Jenkins, 181 N.W. 826, 827 (Wis. 1921). <, /TD>
31. See, e.g., Cal Civ. Code Ann. 4600(a) (West 1970); Utah Code Ann. 30-3-10 (1953).
32. See Rena K. Uviller, , Fathers' Rights and Feminism: The Maternal Presumption Revisited, 1 Harv. Women's L.J. 107, 109, 115 (1979). But see Elizabeth Scott & Andre Derdeyn, The Parent-child Relationship and the Current Cycle of Family Law Reform: Rethinking Joint Custody, 45 Ohio St. L.J. 455, 462 (1984) (discussing support for the maternal presumption by women's groups).>
33. See Uviller, supra note 32, at 115.
34. See, e.g., N.H. Rev. Stat. 458:17 (1975); , N.M. Stat Ann. 40-4-9.1 (1978); Fla. Stat Ann. 61.13 , (2) (b) (West Supp. 1983).
35. Scott & Derdeyn, supra note 32, at 462.
36. Starkeson v. Starkeson, 119 N.H. 78, 81-85 (1979) (Douglas, J., dissenting).
37. Id. at 81.
38. Id. at 82.
39. Id. at 85 (Douglas, J., dissenting)
40. Id.
41. Id.
42. N.H. Rev. Stat. Ann. 458:177, II (Supp. 1981).
43. Arthur B. LaFrance, Child Custody and Relocation: A Constitutional Perspective, 34 U. Louisville J. Fam. L 1, 73 (1995-1996).
44. Tabitha Sample & Theresa Reiger, Relocation Standards and Constitutional Considerations, 10 J. Am. Acad. Matrim. Law. 75, 230 (1998)
45. Shapiro v. Thompson, 394 U.S. 618, 629 (1969) (citing Articles of Confederation, Art. IV 1 (1777)).
46. See, e.g., Jones v. Helms, 452 U.S. 412 (1981); Shapiro v. Thompson, 394 U.S. 618 (1969).
47. Edwards v. California, 314 U.S. 160, 179 (1941) (Douglas, J., concurring).
48. Shapiro, 394 U.S. at 630-631.
49. Id. at 631-33 (citing United States v. Jackson, 390 U.S. 570, 581 (1968)).
50. United States v. Guest, 383 U.S. 745, 760 (1966).
51. Shapiro, 394 U.S. at 631.
52. Jackson, 390 U.S. at 581.
53. Id.
54. Edwards, 314 U.S. at 172.
55. Id. at 169.
56. Id. at 167-76. (Cardozo, J., concurring).
57. William v. Fears, 179 U.S. 270, 274 (Fuller, J., concurring).
58. Shapiro, 394 U.S. at 631-632.
59. LaFrance, supra note 43, at 73.
60. Id.
61. Id. at 82.
62. Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972).
63. Id. at 164.
64. Id.
65. Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 877 (1992).
66. Olmstead v. United States, 277 U.S. 438, 478 (1928).
67. Stanley v. Illinois, 405 U.S. 645, 658 (1972).
68. Id. at 656-658.
69. LaFrance, supra note 43, at 10.
70. See, e.g., House v House, 779 P.2d 1204 (Alaska 1989); Osteraas v. Osteraas, 859 P.2d 948 (Idaho 1993); Sample & Reiger, supra note 44, at 235-236.
71. LaFrance, supra note 43, at 8.
72. Id. at 68.
73. Id. at 42.
74. Id. at 66.
75. DeBeaumont v. Goodrich, 644 A.2d 843, 857-858 (Vt. 1994) (Johnson, J., dissenting).
76. Id.
77. D'Onofrio v. D'Onofrio, 365 A.2d 27 (N.J. Super. 1976).
78. LaFrance, supra note 43, at 101.
79. D'Onofrio, 65 A.2d at 29-31.
80. Edwin J. Terry, et al., Relocation: Moving Forward, or Moving Backward?, 15 J. Am. Acad. Matrimonial Law. 95, 171 (Spring 1998) (quoting Tropea v Tropea, 665 N.E.2d 145, 151 (N.Y. 1996)).
81. Tropea, 665 N.E.2d at 145-153.
82. Id. at 152.
83. Ireland, 717 A.2d at 682.
84. LaFrance, supra note 43, at 43.
85. Terry, et al, supra note 80, at 171.
86. Tropea, 65 N.E.2d at 151.
87. Ireland, 717 A.2d at I686.
88. LaFrance, supra note 43, at 3.
89. DeBeaumont, 644 A.2d at 857-858 (Johnson, J., dissenting).
90. Butler v. Butler, 83 N.H. 413, 415 (1928).
91. Id.
92. Id. at 414.
93. Turner v. Turner, 86 N.H. 463 (1934).
94. Id. at 464.
95. Id. at 465.
96. Houde v. Beckmeyer, 116 N.H. 719, 721 (1976).
97. Id. at 720.
98. Id. at 721.
99. Id. at 722.
100. Id. at 721.
101. Halliday v. Halliday, 134 N.H. 388, 389 (1991).
102. Id. at 391-392.
103. Id.
104. Id. at 392.
105. Id. (citing Del Pozzo v. Del Pozzo, 113 N.H. 436, 437 (1973)).
106. Tomasko, 761 A.2d at 410.
107. Ireland, 717 A.2d at 683.
108. Id.
109. See, e.g., Id at 681; Tropea, 665 N.E.2d at 151; Wallerstein & Tanke, supra note 1, at 310.
110. Id. at 682.
111. See, e.g., Id. at 680; In re Marriage of Burgess, 913 P.2d 473, 482-483 (Cal. 1996); Bernick v. Bernick, 505 P.2d 14 (Co. 1972); Tropea, 665 N.E.2d 145.
112. Ireland, 716 A.2d at 681 (citing D'Onofrio, 356 A.2d at 30).
113. Id.
114. Tomasko, 761 A.2d at 410-411.
115. Id. at 412.
116. Id.
117. Ireland, 731 A.2d at 683.
118. Id
119. Id.
120. HB 386, 458:23-a (2001).

The Author
Claire Rachel Howard, Class of 2002,
Franklin Pierce Law Center,
Concord, New Hampshire.

The Author
Anita Soni, Class of 2002,
Franklin Pierce Law Center,
Concord, New Hampshire.

NHLAP: A confidential Independent Resource

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
© NH Bar Association Disclaimer