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Bar Journal - December 1, 1999

Relocation of the Principal Residence of a Child - Survey of the Legal Environment



The increasing frequency of child relocation cases can be attributed to several variables. Society as a whole has become more mobile than it was ten years ago. Employment or educational opportunities oftentimes require custodial parents to move considerable distances from non-custodial parents. In addition, the prevalence of remarriages and blended families adds complexity to the issue of child relocation cases. Relocation decisions made by one blended family may affect their former spouses and the children from each prior relationship.

The issue of relocation has been presented to the New Hampshire Supreme Court on several occasions. However, the Court has declined to articulate a test to be utilized by the trial courts when confronted with the issue of whether or not to allow a custodial parent to relocate with the parties' minor children.2 As a result, there is no uniform standard that litigants, their counsel, or the trial courts can turn to for guidance.

The issue of relocation is a vast and complex one. States across the country have varied widely in dealing with this issue. This article will highlight the existing New Hampshire case law and survey the various tests and presumptions developed in other jurisdictions.


The first case in New Hampshire addressing the relocation of a child outside the state, ancillary to a custody order, is Butler v. Butler.3 The issue in Butler centered upon a mother's challenge to the trial court's award of custody to a third party living in another jurisdiction. In upholding the initial decree on appeal, the Supreme Court re-enunciated the well-established principle that the trial court has the authority to make such an order within its sound discretion to further the best interest of the children.

While access to the child by the parent denied custody is an important right, it is one that must yield to the greatest good of the child. No unreasonable infringement of the right is apparent here. No complaint is made of the distance to be traveled for visitation. The presence of an intermediate state line is of no moment.

The prayer with respect to the custody of the minors, by virtue of our statute, was addressed to the sound discretion of the presiding justice, to be exercised with paramount consideration for the welfare of the children.4

The next case to address relocation of a parent with the parties' child was Turner v. Turner.5 After the parties' divorce, the mother obtained passports for herself and the minor child to travel to France. Leave of the court was not sought for the trip. When the father discovered the contemplated trip, he petitioned the superior court for a change in custody. That motion was granted, and after an unexplained procedural difficulty, the child ended up in the Protestant Orphanage of Nashua, no longer in the physical custody of either parent. Approximately six months later, the mother petitioned the court in order for her to take the child to France for the summer. The father opposed this motion on the ground that the move out of state would infringe his right to see and visit the child.6 In denying the mother's motion, the New Hampshire Supreme Court agreed with the father and reduced the issue to one concerning the best interest of the child.

The libelant's right to have access to his son is an important right, and should not be jeopardized except for reasons touching the welfare of the child.

On the reported facts the motion should be denied.7

Thus, the Turner Court affirmed the trial court's restraint upon a mother's ability to remove the parties' child from New Hampshire based upon the best interest of the child.

The case of Houde v. Beckmeyer8 involved an appeal from the denial of a father's petition for modification of primary physical custody of the parties' minor child. The stipulation, incorporated into the parties' final decree, contained a clause restricting the child's removal from the State of New Hampshire.9 The mother, who had primary physical custody of the parties' child, had unsuccessfully attempted modification of the travel restriction. Some four years after the denial of her petition to modify, the custodial mother covertly removed the child to the State of Washington. Upon discovering this removal, the father of the minor child petitioned for a change in primary physical custody.

The issue on appeal in Houde was whether the trial court had abused its discretion in applying the standard enunciated in Perreault v. Cook10 to deny the father's requested modification. The court found support for the lower court's decisions and, therefore, did not disturb the trial court's order. However, instead of resting the affirmation of the trial court's order upon the Perreault standard, the Supreme Court ultimately rested upon the fact that "the court could have reasonably concluded that the upset in the minor's life resulting from a change in custody was not in the child's best interests."11

The most recent reported decision by the New Hampshire Supreme Court in relation to a relocation issue was Halliday v. Halliday.12 Halliday involved a challenge to a provision in a decree of divorce that required the mother with primary physical custody of the parties' children to seek approval from the father or the court before moving the primary residence of the parties' children from New Hampshire. In upholding this restriction, the New Hampshire Supreme Court held that the decree was reasonable because the mother's ability to relocate the children's primary residence was restricted only to the extent she could not show a "legitimate purpose" for relocating.13

There is a unifying theme all of the New Hampshire Supreme Court's opinions addressing the removal of children from the state, ancillary to a custody order, incident to divorce. The best interest of the children is the primary and guiding concern of the court. Further, the relationship of the children with the non-custodial parent is just as vital to the best interest of the children as the relationship with the parent having primary physical custody.14


States across the country have varied widely in dealing with the issue of relocation of a child's principal residence. There is a high degree of disparity between the approaches employed by the courts. Some place a great burden on the custodial parent to establish why he or she should be permitted to move. Others assume a custodial parent should be allowed to relocate, unless the non-custodial parent can show an actual detriment to the child deriving from the relocation. The resulting order is oftentimes a shifting of primary physical custody, not simply permission to relocate.

At one time New York had the highest threshold for allowing a custodial parent to relocate with the minor children. It required the custodial parent to show "exceptional circumstances"15 or "pressing concerns"16 that justify interference with the non-custodial parent's visitation rights. However, in 1996 the Court of Appeals of New York decided Tropea v. Tropea,17 in which it modified the standard to be applied to relocation cases.

[W]e hold that, in all cases, the courts should be free to consider and give appropriate weight to all of the factors that may be relevant to the determination. These factors include, but are certainly not limited to each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, the degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements. In the end, it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child's best interests.18

In Tropea, the parties were married in 1981 and divorced in 1992. There were two children born of this marriage. Pursuant to the parties' divorce decree, the mother was awarded sole custody of the children and the father was granted generous visitation. Additionally, the parties were barred from relocating outside of Onondaga County, where both resided, without prior judicial approval. Subsequently, the mother commenced a proceeding seeking changes in the visitation arrangements and permission to relocate with the children to the Schenectady area to marry an architect who had an established firm in that county. The father opposed the requested relief and filed a cross-petition for a change of custody.

  On appeal, the Appellate Division concluded that the mother had made the necessary showing that the requested relocation would not deprive the respondent father of "regular and meaningful access to his children." Further, the court noted that the mother's proposed visitation schedule afforded respondent the opportunity for frequent and extended contact with his children.19 Finally, the court found that the move would be in the best interest of the children. Accordingly, the Court of Appeals approved the lower court's order granting the custodial mother the right to relocate.

Some states, such as Illinois, place the burden on the custodial parent to show that relocation would be in the children's best interest. Illinois creates this presumption by statute.20 However, the Illinois courts are not settled on exactly how this burden should be implemented. Some decisions in Illinois focus on the manner in which the relocation would benefit the custodial parent and indirectly benefit the minor child.21 By contrast, other decisions focus on the non-custodial parent's time with the children, and whether the custodial parent has shown the benefits to the child from relocation are sufficient when balanced against the detriment to the child which will result from the disruption in the visitation arrangement.22

Other states, such as Maryland, provide that the best interests of the child should control the relocation decision, but that the burden of proof should not rest on either parent. Rather, the court should examine the totality of circumstances and a decision should be made based on all factors.23 Some critics of this approach have argued that this places the burden of proof on the custodial parent, in that he or she is required to re-litigate the issue of custody and demonstrate why he or she should continue as the child's primary physical custodian.

The "shifting burden" approach, utilized in both New Jersey and Connecticut, is one of the leading tests relied upon in addressing the issue of relocation. Several states, including Massachusetts, have adopted this or a similar approach.24

New Jersey adopted a statute allowing relocation by a custodial parent only "upon cause shown."25 The custodial parent is first required to show that the move is being made for a good faith reason and would not be detrimental to the minor children. If the custodial parent meets his or her burden, then it shifts to the non-custodial parent. The non-custodial parent bears the burden of showing that the proposed change in the visitation schedule would be impossible or so burdensome as to unreasonably and adversely affect the non-custodial parent's visitation rights in order to prevent the relocation.26

The New Jersey court interpreted this requirement in the sentinel case D'Onofrio v. D'Onofrio.27 The D'Onofrio decision set forth specific factors which should be examined in evaluating a request by a custodial parent to relocate. These factors include: (1) the likelihood that the move would enhance the quality of life for the custodial parent and the children; (2) the motive of the custodial parent in making the move; (3) the likelihood that the custodial parent will comply with substitute visitation orders; (4) the integrity of the non-custodial parent's motive in opposing the move; and (5) whether a realistic and reasonable visitation schedule can be arranged to protect the child's relationship with the non-custodial parent.28 This approach, which focuses more on whether the children will suffer from the move than whether they will benefit from it, has been adopted by several other states.

The 1998 Connecticut Supreme Court decision of Ireland v. Ireland29 significantly drew upon the D'Onofrio opinion. In addition to the factors identified in D'Onofrio, the Ireland court also drew from the Tropea decision for inclusion of three additional factors: "the quality of the relationship between the children and the custodial and non-custodial parents; the relationship between the parents themselves and its potential negative impact on the children; and the effect of the move on any extended family relationships.30

In addition, the Ireland court also adopted a burden-shifting scheme.31 Under this scheme the primary custodial parent seeking relocation bears the initial burden of showing that there is a "legitimate" purpose for the relocation.32 Once a legitimate purpose is shown, a rebuttable presumption arises that the move out of state is in the best interests of the children. The burden then shifts to the non-custodial parent objecting to the relocation to show through the non-exhaustive factors listed that the relocation is not in the best interest of the children.

Massachusetts has developed a standard of "real advantage" to the minor children in determining whether permission will be granted to relocate.33 The real advantage standard incorporates the standards of the best interest test and considers the interests of each parent. Therefore, when faced with the question of relocation, the court must first determine whether the custodial parent can establish a sincere, sound reason for the move.34 Once the reason has been established, then the court applies the "best interest" standard, considering all factors collectively. In determining what serves a child's best interests, the court will consider essentially the same factors outlined in D'Onofrio. Although Massachusetts has established a standard applicable to all removal cases, a steadfast rule is not applied because the nature of the issue requires a case-by-case application of the standard.35

The State of Wisconsin has established a presumption that it is in a child's best interest to maintain the existing custodial arrangement. As a result, the non-custodial parent bears the burden of proving that relocation is not in the child's best interest.36 The Wisconsin Court of Appeals has held that the only available remedy in a relocation case is to shift primary physical custody because it lacks the authority to prohibit a custodial parent from relocating.37 This standard imposes an onerous burden upon the non-custodial parent. The custody dispute, which the non-custodial parent may have lost during the underlying divorce, must be relitigated. This time the non-custodial parent must prevail on the issue of custody in order to prevent the child from relocating.

The State of Minnesota has adopted the most stringent position, in favor of the custodial parent. Here, a change in custody is granted only upon a showing that actual detriment may come to a child if the present custody situation is not changed and the custodial parent is allowed to relocate with the child.38 The non-custodial parent is required to make a prima facie showing of actual detriment before an evidentiary hearing will be scheduled.

A. The Presumption in Favor of Relocation

In a substantial majority of states, there is a rebuttable presumption that a custodial parent can relocate with his/her child if the parent has a legitimate reason for the move. Therefore, in many instances non-custodial parents who seek to enjoin the custodial parent from moving or who seek to modify custody, are unsuccessful. Typically, the burden of proof is on the parent opposing the move to show that the move is not in the child's best interest.

In re Marriage of Burgess39 has been cited as a leading case on the relocation question. Here, Mrs. Burgess petitioned the court for a divorce. Thereafter, the trial court entered a temporary order granting the parties joint legal custody of their two children and awarding Mrs. Burgess sole physical custody. Later, Mrs. Burgess accepted a job transfer which required her to relocate approximately 40 minutes from her current residence. Mr. Burgess opposed the proposed relocation.

On appeal, the Supreme Court of California declared that it is the custodial parent's presumptive right to change residence of the minor child, "so long as the removal would not be prejudicial to their rights or welfare."40 Although the Burgess matter involved an initial determination of custody, the court announced that "the same conclusion applies when a parent who has sole physical custody under an existing judicial custody order seeks to relocate: the custodial parent seeking to relocate, like the noncustodial parent doing the same, bears no burden of demonstrating that the move is 'necessary'."41 Effectively, the Burgess decision created a sharply criticized presumption focused upon protecting the custodial parent's desire to relocate instead of the over-all best interests of the child.42

Notably, however, the court did not establish a hard and fast rule. Instead, the court recognized "that bright line rules in this area are inappropriate: each case must be evaluated on its own unique facts."43 While continuing to place importance on the continuity of the placement of the child with the primary caregiver, the court stated that a trial court may also assess the child's existing contact with both parents - including de facto as well as de jure custody arrangements - and the child's age, community ties, and health and educational needs.

B. Cases Denying Relocation

In re Marriage of Elser44 the custodial mother sought an order permitting her to remove the parties' children to a permanent residence outside the state. In opposition, the non-custodial father moved for an order designating him as the children's primary residential custodian in the event the mother relocated. Montana statutes allow a parent entitled to the custody of a child to change residence subject to the power of the court to prohibit a removal that would prejudice the rights or welfare of the child.45 Ultimately, the court granted the father's request for a change in physical custody. The court reasoned that the change in physical custody was in the best interests of the children because it would enable continued contact between the children and a committed, active parent.46 The court reached this conclusion even though the father's original secondary custodial schedule was limited to every other weekend, major holidays and two months of residential custody in the winter.

In Re Marriage of Bradley47 also involved a post-divorce change of primary physical custody. The change resulted from the custodial mother's move from the Wichita, Kansas area to Washington, D.C. The non-custodial father alleged that the relocation constituted a material change of circumstances under Kansas law, and thus the best interests of the children would be served by having them stay with him in Wichita.48 In affirming the trial court's decision to allow the change of custody, the Supreme Court of Kansas noted a psychologist's conclusions that both parents were good parents, but Wichita presented a picture of proven stability for the children with their schools, friends and relatives.49 In particular, the court noted that terminating the existing co-parenting relationship constituted a material change of circumstances.50

Jones v. Jones51 is another example of a court's denial of a custodial parent's request to relocate. In Jones the trial court denied the custodial mother's request to remove the parties' children from the state of Missouri to South Carolina. The parties' separation agreement contained a clause allowing the mother to move with the children to South Carolina. The mother exercised her right under the terms of the parties' agreement. However, shortly thereafter she contacted the father and told him that she had made a mistake and that it was important for the children to be close to him.52 The custodial mother then returned to Missouri. The father saw the children every weekend and sometimes during the week.53 She then remarried and again decided to move from Missouri.

In this case, the court noted that the best interests of a child are facilitated by continued relationships with both parents.54 After the mother's return to Missouri, the children became accustomed to spending more time with their father. The court concluded that the custodial mother had no meaningful reason to move from Missouri. Despite a remarriage, she was not economically benefited by the proposed relocation. After consideration, the court concluded that the children's quality of life was not improved by being away from their father and that the mere desire to move, versus the need to move, was an insufficient reason to relocate.55 Accordingly, the court affirmed the trial court's decision that custodial modification would be in the best interests of the children.

Although the Florida Supreme Court in Russenberger v. Russenberger56 recognized a trend favoring relocation, it ultimately denied the custodial mother's request to move. Here, the court referred to previous holdings recognizing that if the relocation is well intended, is in the parent's (and therefore the children's) best interest, and not for vindictive reasons, the change should ordinarily be approved.57 The court in Russenberger found that the trial record contained conflicting evidence as to the mother's good faith intent in relocating, the impact of the move upon the children and their continuing relationship with their father.58 The court further noted that the state's presumption in favor of relocation is rebuttable and therefore upheld the trial court's decision prohibiting the mother's move.

C. Relocation Involving Shared Custodial Parents

The issue of relocation becomes more complicated if the parents share physical custody of their children and the children spend a substantial amount of time with each parent. In such cases presumptions allowing a primary physical custodian to move with the child do not apply.59

In re the Marriage of Ryan60 involved parents who shared physical custody of their children. In Ryan, the Supreme Court of Montana upheld a district court's award of joint physical custody involving alternating weeks of custody between the parents. The court also upheld the provision that, should one parent leave the home city, custody would automatically revert to the non-moving parent.


A review of cases and research articles yields a number of reasons addressed when a court allows or denies relocation of a custodial parent with a child. The following is a summary of the reasons offered by litigants in support of or in opposition to a proposed relocation.

A. Reasons to Allow the Relocation

Typically, one or more of the following reasons needs to be established before a custodial parent would be permitted to relocate with the parties' minor children. In an effort to bolster the relocating parent's request, he/she should be prepared to describe specific plans regarding new employment, residence, schools the children will attend, and, if a new partner is involved, a commitment to the relationship if not a planned or actual marriage.

  1. Custodial parent has the right.
  2. Better job/economic condition.
  3. Proximity to extended family.
  4. Accompany new spouse.
  5. Seeking advanced educational degree.
  6. Failure of non-custodial parent to exercise visitation rights.
  7. The relationship between the non-custodial parent and the child will not be unduly undermined.
  8. In the best interest of the child.

B. Reasons for Denying the Relocation

In an effort to persuade a court to deny a proposed relocation, the non-custodial parent should explore and be prepared to present testimony and evidence regarding one or more of the following factors.

  1. Not in the best interests of the child or harmful to the child's welfare.
  2. Disruptive to the child's existing environment that may include attachment to community, extended family, and friends.
  3. Loss of frequent contact with the non-custodial parent.
  4. Alternative visitation arrangements will be burdensome or impossible.
  5. The relocation will undermine the influence of the non-custodial parent on the child and interfere with the quality of the relationship.
  6. Proposed new job of the custodial parent not a significant improvement over locally available job.
  7. Relocating parent not likely to comply with future visitation orders.


The New Hampshire Legislature is aware of the legal void that exists regarding the issue of relocation. Presently, House Bill 628 relative to the relocation of a child's principal residence is being studied by the New Hampshire Legislature's Children and Family Law Committee.

Proposed House Bill 628 is based, in significant part, on a model act developed by the American Academy of Matrimonial Lawyers. In March 1997, the Academy drafted a Proposed Model Relocation Act in which it recommends factors that courts should consider in determining whether to permit relocation:

  1. The nature, quality, extent of involvement, and duration of the child's relationship with the parent proposing to relocate and with the non-relocating parent, siblings, and other significant persons in the child's life.
  2. The age, developmental stage, needs of the child, and likely impact of relocation on the child's physical, educational, and emotional development, taking into consideration any special needs of the child.61
  3. The feasibility of preserving the relationship between the non-relocating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
  4. The child's preference, taking into consideration the age and maturity of the child.
  5. Whether the relocating parent has established a pattern of conduct promoting or thwarting the non-relocating parent's relationship with the child.
  6. Whether the relocation will enhance the general quality of life for both the custodial party seeking relocation and the child, including but not limited to financial or emotional benefit or educational opportunity.
  7. The reasons each party seeks or opposes relocation.
  8. Any other factor affecting the best interest of the child.62

If the parents "are two competent, caring parents who have had a healthy post-divorce relationship with the child, the competing interests are properly labeled compelling and irreconcilable."63 Each parent has a compelling interest in maintaining a relationship with the child, and the child has a compelling interest in stability - both in terms of remaining with the custodian and maintaining frequent contact with the non-custodial parent.

The Model Statute offers three alternatives for imposing the burden of proof: (1) the relocating person has burden to show that relocation is made in good faith; (2) the non-relocating person has burden to show objection made in good faith and relocation is not in the best interest of the child; or (3) the relocating person has initial burden of showing good faith, after which the non-relocating person has burden to show relocation is not in best interest of the child.64


Numerous jurisdictions have struggled with the issue of relocation and have reached varied conclusions. In some jurisdictions, the applicable standard to be applied has evolved over time. Because the facts of each case will vary considerably, there may not be one definitive answer to this very difficult issue. However, it is clear is that litigants, practitioners, and the trial courts are in need of an analytical framework in order to resolve these disputes in an even-handed and equitable manner.



Attorney V. Richards Ward, Jr. also contributed in the researching and drafting this article. His assistance was greatly appreciated.


C.f. Wahrenberger v. Wahrenberger, N.H. Supreme Court Docket No. 95-709 (affirming, without opinion, the trial court's decision to prevent the custodial mother from relocating from Lebanon to Peterborough, New Hampshire). In the Matter of Cereola & Johnson, N.H. Supreme Court Docket No. 99-005. In this case the custodial mother challenged the trial court's denial of her request to relocate to Virginia with the parties' minor children. The New Hampshire Supreme Court accepted the Notice of Appeal. Both parties briefed and argued the case. Following oral argument, the parties were ordered to participate in a settlement conference. The stipulation reached by the parties precluded the Supreme Court from issuing an opinion on the issue of relocation. See also, In the Matter of Zank & Twardosky, N.H. Supreme Court Docket No. 98-479. The custodial mother filed a Petition for Writ of Prohibition in New Hampshire challenging the trial court's order that she remain with the parties' son. Ms. Zank filed a Statement as to Cause requesting that the Supreme Court retain jurisdiction of this issue while the matter remained pending in the lower court. Mr. Twardosky concurred with this request. After the superior court vacated its earlier order prohibiting Ms. Zank from relocating to Connecticut, the Supreme Court closed the docket on this matter.

Presently, In the Matter of Dubuc (now Tomasko) & Dubuc, N.H. Supreme Court Docket No. 98-836, is pending. In this case, the trial court prohibited the custodial mother and the parties' two minor children from relocating from New Hampshire to Montana. The custodial mother appealed.


Butler v. Butler, 83 N.H. 413, 143 A. 471 (1928).


Id. at 416.


Turner v. Turner, 86 N.H. 463, 169 A. 873 (1934).




Id. at 464-456.


Houde v. Beckmeyer, 116 N.H. 719, 366 A.2d 504 (1976).




Perreault v. Cook, 114 N.H. 440, 322 A.2d 610 (1974)(standard for determining whether or not an existing final custodial order should be modified is a strong possibility of harm).


Houde, 116 N.H. at 722, 366 A.2d at 506 (citing Del Pozzo v. Del Pozzo, 113 N.H. 436, 309 A.2d 151 (1973)) (emphasis added).


Halliday v. Halliday, 134 N.H. 388, 593 A.2d 233 (1991).


Id. at 392, 593 A.2d at 235.


See Butler v. Butler, 83 N.H. 413, 143 A. 471 (1928); see also Turner, 86 N.H. 463 (1934) and Houde, 116 N.H. 719 (1976).


Weiss v Weiss 52 NY2d 170, 174-175, 436 N.Y.S.2d 862, 864-65, 418 N.E. 2d 377, 379-380 (1981).


Lavelle v Freeman, 181 AD2d 976, 977, 581 N.Y.S.2d 875 (1992); Rybicki v Rybicki, 176 AD2d 867, 575 N.Y.S.2d 341 (1991); Hathaway v Hathaway, 175 AD2d 336, 572 N.Y.S.2d 92 (1991).


Tropea v. Tropea, 665 N.E.2d 145, 87 N.Y.2d 727, 642 N.Y.S.2d 575 (1996).


Id. at 151.


Id. at 152.


Ill. Ann. Stat., ch. 40, para. 609.


See In Re Marriage of Zammarippa-Gesundheit, 529 N.E.2d 780, 175 Ill. App. 3d 184 (Ill. App. Ct. 1988).


See In Re Marriage of Berk, 574 N.E.2d 1364, 215 Ill. App. 3d 459 (Ill. App. Ct. 1991).


See Goldmeier v. Lepselter, 598 A.2d 482, 89 Md. App. 301 (Md. Ct. Spec. App. 1991).


See Yannas v. Frondistou-Yannas, 481 N.E.2d 1153, 395 Mass. 704 (Mass. 1985).


N.J. Stat. Ann. 9:2-2.


D'Onofrio v. D'Onofrio, 365 A.2d 27, 144 N.J.Super 200 (N.J. Super. Ct. Ch. Div. 1976) aff'd 365 A.2d 716, 144 N.J. Super 352 (N.J. Super. Ct. App. Div. 1976). See also Holder v. Polanski, 544 A.2d 852 (N.J. 1988).


See Id.


D'Onofrio, 365 A.2d at 30, 144 N.J. Super 206.


Ireland v. Ireland, 717 A.2d 676, 246 Conn. 413 (1998).


Ireland, 717 A.2d at 686 (citing Tropea, 665 N.E. 2d at 145).


The propriety of the shifting burden was sharply criticized by the dissent in Ireland. Ireland, 717 A.2d at 691-95, 246 Conn. At 445-54 (Norcott, J. dissenting)(presumption created by showing of prima facie cases not necessary because custodial parents ability to demonstrate benefits not difficult and makes sense under pre-existing legal framework where burden falls solely on party seeking modification of non-custodial parent's visitation rights). In addition, the burden-shifting standard is not used in a number of jurisdictions, including ones from which the Ireland court drew upon for formulating its standard. See Pollock v. Pollock, 889 P.2d 633, 181 Ariz. 275 (Ariz. 1995)(holding that burden of proof lies solely with custodial parent seeking to relocate); see also, Staab v. Hurst, 868 S.W. 2d 517, 44 Ark. App. 128 (Ark. 1994) (holding that burden is on custodial parent seeking relocation to show "real advantage" to move and that move is in the best interests of the child); Ramos v. Ramos, 697 So. 2d 280, 97-143 (La. App. 5 Cir. 6/2/97)(burden solely on custodial parent throughout analysis to establish both a good reason for move and that move is in child's best interests); Yannos v. Frondistov-Yannos, 481 N.E. 2d 1153, 395 Mass. 704 (Mass. 1985) (holding that burden on custodial parent to show "real advantage" and the collective consideration of all parties' interests in relations to the children's best interests); Harder v. Harder, 524 N.W. 2d 325, 246 Neb. 945 (Neb. 1994)(burden on custodial parent); Holder v. Polanski, 544 A.2d 852, 111 N.J. 344 (N.J. 1988)(initial burden on custodial parent followed by weighing of best interest factors); Sawyer v. Sawyer, 664 N.Y.S. 2d 505, 242 A.D.2d 969 (N.Y. App. Div. 1997)(Tropea factors with central concern on impact move has on relationship between child and non-custodial parent as it affects best interests of child); Stout v. Stout, 560 N.W. 2d 903, 1997 N.D. 61 (N.D. 1997)(burden on custodial parent throughout analysis); Gruber v. Gruber, 583 A.2d 434, 400 P.A. Super 174 (Pa. 1990)(burden on custodial parent to show significant improvement with shared burden and thereafter focus upon preservation of child's relationship with non-custodial parent); Garrison v. Mulcahy, 636 A.2d 732 (R.I. 1993)(burden on custodial parent solely).


Ireland, 717 A.2d at 683, cf. Halliday, 134 N.H. 388, 593 A.2d 233 (1991).


Yannas v. Frondistou-Yannas, 481 N.E.2d 1153 (Mass. 1985).


See Id.


See Id.


See Kerkvliet v. Kerkvliet, 480 N.W.2d 823, 166 Wis.2d 930 (Wis. Ct. App. 1992).




See Auge v. Auge, 334 N.W.2d 393 (Minn. 1983).


In re Marriage of Burgess, 913 P.2d 473, 13 Cal.4th 25, 51 Cal. Rptr. 2d 444 (1996).


Id., 913 P.2d at p. 478, 13 Cal.4th at 32, citing Fam. Code, 7501 ("A parent entitled to custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.").


Id., 913 P.2d at p. 483, 13 Cal.4th at 38, 51 Cal.Rptr.2d at 454 n.12. Of note, the court held that "[a] different analysis may be required when parents share joint physical custody of the minor children under an existing order and in fact, and one parent seeks to relocate with the minor children. In such cases, the custody order 'may be modified or terminated upon the petition of one or both parents or on the court's own motion if it is shown that the best interest of the child requires modification or termination of the order.' The trial court must determine de novo what arrangement for primary custody is in the best interest of the minor children." Id., 913 P.2d at 483(emphasis in the original)(citations omitted).


See Jennifer Gould, California's Move-Away Law: Are Children Being Hurt by Judicial Presumptions that Sweep too Broadly, 28 Golden Gate L.R. 527 (1998)(criticizing the presumption created by the Burgess opinion) and R. Bryan, Beyond Burgess, 20 Fam. Advoc. 14, 16 - 17 (1997). See also, Alan M. Levy, A Child's Trauma, 11 Fam. Advoc. 3, p. 22 (1989)(recognizing that in relocation cases there are two parent child relationships and that the relationship with the non-custodial parent may in all likelihood weaken due to the custodial parent's relocation); Arnold H. Rutkin, Away from Home, ABA Journal, p. 94 (Oct. 1992)(the relationship between non-custodial parent and the children is also at the heart of the children's best interests).

The Burgess court's presumptions are based, in part, upon Judith S. Wallerstein's amicus curiae brief to that court which was converted to law review form. See Wallerstein and Tanke, To Move or Not to Move: Psychological and Legal Considerations in the Relocation of Children Following Divorce, 30 Fam. L. Quart. 2, 305 (Summer 1996). In this article Dr. Wallerstein asserts that the "centrality of the well-functioning custodial parent-child relationship" is the primary factor above all others affecting post-divorce psychological child development. Such reasoning excludes the necessary inclusion of other factors in determining a child's best interests such as the non-custodial parent's relationship with the child. See Paula M. Raines, Joint Custody and the Right to Travel: Legal and Psychological Implications, 24 Journal of Fam. L. 625 (1985 - 86)(chronicling Dr. Wallerstein's early findings that the post-divorce environment is more healthy for children where the continuing contact with both parents is preserved). See also, Weiss v. Weiss, 418 N.E. 2d 377, 52 N.Y.2d 170 (1981)(visitation is right of both the non-custodial parent and the child).


Burgess, 913 P.2d at p. 483, 13 Cal.4th at 39, 51 Cal.Rptr.2d at 454.


In Re Marriage of Elser, 895 P.2d 619, 271 Mont. 265 (1995) (overruled on other grounds).


Mont. Code Ann. 40-4-217.


See In Re Marriage of Elser, 895 P.2d 619, 271 Mont. 265 (1995) (overruled on other grounds). In re the Matter of the custody of D.M.G., 951 P.2d 1337 (Mont. 1998).


In re Marriage of Bradley, 899 P.2d 471, 258 Kan. 39 (1995).


See Id.


See Id.


See Id.


Jones v. Jones, 903 S.W. 2d 277 (1995).


See Id.


See Id.


See Id.


See Id.


Russenberger v. Russenberger, 669 So.2d 1044, 21 Fla.C.Weekly s116 (1996).


See Id.; see also Mize v. Mize, 589 So.2d 959 (Fla. 5th D.C.A. 1991); Hill v. Hill, 548 So.2d 705 (Fla. 3d D.L.A. 1985).


Russenberger, 669 So.2d 1044 (Fla. 1996).


See Burgess, 913 P.2d at p. 483, 13 Cal.4th at 39, 51 Cal. Rptr.2d at 454 n.12. The Burgess court acknowledged that a difference analysis may be required if the parents share physical custody of their children. "In such cases, the custody order 'may be modified or terminated upon the petition of one or both parents or on the court's own motion if it is shown that the best interest of the child requires modification or termination of the order.' The trial court must determine de novo what arrangement for primary custody is in the best interest of the minor children." Id.


In re the Marriage of Ryan, 720 P.2d 691, 222 Mont. 188 (1986).


This factor has been addressed by Dr. Samuel Roll in his article "How A Child Views the Move" printed in Family Advocate, Volume 20, No. 2, published by the American Bar Association, Fall, 1997. Dr. Roll underscores the need for courts to consider age-related developmental factors and the psychological makeup of each child when relocation is at issue. Dr. Roll concludes that a child six years old or less should see both parents weekly or monthly or important emotional ties with that parent will be harmed, along with gender identity and conscience development.


American Academy of Matrimonial Lawyers, Proposed Model Relocation Act 405 (March 9, 1997). A copy of the proposed Model Relocation Act can be obtained at the AAML web site:


Id. at 405, comment.


Id. At 407.


The Author

Attorney John D. Cameron is an associate with the Law Offices of John Laboe, Concord, New Hampshire.

The Author

Attorney Carolyn S. Garvey is a principal in the firm of Douglas, Robinson, Leonard & Garvey, Concord, New Hampshire.


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