Psychological testimony regarding the relocation of children after divorce

In this essay, I will outline the custodial issues that arise when a custodial parent considers relocating a significant distance away from the other parent, and the policies that are recommended to approach and solve those issues. I will explain how these policies should be adapted and applied to each case, given the specific set of factors that arise in each case. I will then consider the role of psychologists in assessing factors which affect quality of life in relocation for both child and parent. Following that, I will draw upon research evidence to explore which situations lead to a more beneficial outcome for the child. I will mention the issues that arise when the child is very young, and lastly, I will state my opinion on which policies are the most constructive. The policies adopted by the state, scientific research, and consequently, my essay, adopt the Best Interests of the Child standard (BIS) where appropriate. The BIS prioritizes the interests of the child above the interests of either parent (Fabricius, Braver, Diaz, & Velez, 2010). In this essay, the term ‘child’ refers generally to either one child or more than one child that the custodial parent may be looking after. Also, ‘custodial parent’ is the parent with the primary physical custody, which may or may not be shared with the ‘non-custodial parent’, who plays a more minor role in the custodial schedule.

A tough question for courts to answer is what to do when a custodial parent wishes to move away from a non-custodial parent, taking their child with them. The custodial parent may wish to move for one or more reasons, including moving to take hold of career or education opportunities, to be closer to extended family or a spouse, because of a job transfer, or even to put distance between them and their ex-spouse or partner (Elrod, 2006). The concern is that the child will not adapt to their new environment, including their new school, relationships, physical residence and community, especially since that new environment lacks the supportive presence of their non-custodial parent. A significant conflict comes into play about the constitutional rights of each parent. On the one hand, the custodial parent who is refused permission to move with the child may feel that their autonomy and their right to freedom to move is undermined. On the other hand, if relocation with the child is permitted by the state, the non-custodial parent may feel that their connection with the child is lost forever. Often, the initial or modified custody order contains geographical restrictions which would prevent the custodial parent from taking their child with them.

One of the methods used by the state to try to prevent the custodial parent from relocating is by issuing a conditional change-of-custody order. This order changes the custodial arrangement towards the non-custodial parent if the custodial parent decides to move and is used as a strategy that assumes that the parent will not relocate if they cannot take their child with them. Although it is enforced with the best interests of the child in mind, it is controversial because a change in custody should only be issued when there will be a significant change in circumstances for the child. In most cases, the move will not affect the ability of the parent to care for the child and the child will be able to adapt. Another method used by the state to prevent the custodial parent from relocating is simply to not allow him or her to do it. This infringes on the parent’s right to freedom however, and treats them as different to any other adult. I believe that in this case the parent may start to feel that the children are a burden, which may interfere with their parenting.

In the event that a parent (as opposed to the state) wishes to modify the custody order, it is up to them to prove that a significant change in circumstances for the child will result if the current custody order is not changed (Elrod, 2006). It is up to the parent wishing to relocate to prove that the change of current arrangements is in the child’s best interests. For example, when the custodial order is sought to be changed due to domestic abuse against the child by the non-custodial parent, the court is much more in favour of relocation. Alternatively, if the custody order does not have geographical restrictions, it is up to the non-custodial parent to prove that the move will act against the best interests of the child. In cases of joint custody, an assessment will need to be made on how actively each parent has been performing parental responsibilities. This includes attending school events, taking the child to school, attending to medical problems, preparing meals, helping with homework and night-time care (Elrod, 2006). If the custody order is changed, a new parenting plan will need to be drawn up either by the state or the parents themselves (which is more ideal, and may be assisted by a mediator).

Psychologists are called in to court to give advice on the best interests of the child. The ‘mobility assessment’ includes analysing risk factors and protective factors which could influence how well the child adapts and develops in their new setting (Small, 2005). The assessment is typically made by visiting the family in their home and, while making an effort to be as unobtrusive as possible, observing interactions within the family in their natural setting. The assessor will also listen to the parent’s intentions to maintain their relationship with their child should one of them relocate, and will assess the mental health and caregiving capabilities of the custodial parent.

Elrod (2006) lists factors that are taken into consideration when determining the best interests of the child:

1. The nature, quality and duration of the child’s relationship with each parent.
2. The frequency that the non-moving parent will be able to make visits to the child given the distance required to travel, financial constraints, and the likelihood that the custodial parent will comply with such visits.
3. The child’s preference, taking into consideration their age, maturity and special interests or talents which may or may not be supported in the new environment.
4. The effect on the child’s physical, emotional and mental health, their educational, spiritual and psychosocial development and their economic benefits.
5. The strength of the child’s ties to its present community.

Factors also taken into consideration which focus on the whole family include: 

1. Whether the general quality of life will increase for both the relocated parent and child.
2. What increase in salary the relocating parent might get.
3. The reasons for and against the relocation given by each parent.
4. The possibility that relocation, or non-relocation, may antagonize relations between the parents.

Interestingly, the court is not allowed to consider whether the custodial parent will not move if they are not allowed to take their child with them, or if the other parent will move to the new location.

Knowing the effect of different types of relocation on the well-being of the child is important when considering which option is best for the child. Although the child may suffer short-term challenges when relocating, it is more important to consider the long-term effects. A study by Braver, Fabricius, & Ellman (2003) provides data on the effect of post-divorce relocation on the quality of life of the child. The data shows evidence that:

• Generally, when one parent moves, it is detrimental to the child (as found in 11 out of the 14 variables used in the study). This includes the financial outcome for the child, as well as felt hostility in interpersonal relations, distress felt from the divorce, life satisfaction, perception of their parents as role models and emotional supporters and personal and emotional adjustment.
• Staying with the mother, whether moving to a new location or staying while the father moves, results in a better quality of life for the child (as measured by adjustment and life satisfaction).

The implication is that policy should try to discourage parents from relocating, and possibly to favour granting custody to the mother.

Separation from the non-custodial parent is particularly detrimental when the child is between 0 and 2 years old, for at this age attachment relationships with the parents are still being formed. Because children of this age are still achieving object permanence, infrequent contact will result in the infant seeing the parent as a stranger. Extended separation from a recognised caregiver can result in depression or anxiety for the infant because they do not yet have the cognitive or communication skills that enable them to cope (Kelly & Lamb, 2003). Thus, it would be wise to recommend that the parent who wishes to move away from a child younger than 2 waits until the infant is at least 2, or even 3, years old.

My position is that non-custodial parenting is essential to the development of a child when an attachment relationship has been formed with that parent. Single-parenting is less desirable (Kelly & Lamb, 2003), so every effort should be made to keep the positive aspects of the relationship with the non-custodial parent functioning. Those aspects, including emotional support, role model guidance, financial support and practical help, add to the quality of life of the child. When the decision is made to relocate, measures should be taken to continue the relationship via phone, videos, and visits which should not be impeded by the custodial parent. The outcome of any case should carefully consider how motivated the parents will be with nurturing a long-distance parent-child relationship.

[1 607 words]

April 2014

References

Braver, S. L., Fabricius, W. V., & Ellman, I. M. (2003). Relocation of children after divorce and children's best interests: new evidence and legal considerations. Journal of Family Psychology, 17(2), 206-219.

Elrod, L. (2006). A move in the right direction? Best Interests of the Child emerging as the standard for relocation cases. Journal of Child Custody, 3(3-4), 29-61.

Fabricius, W. V., Braver, S. L., Diaz, P., & Velez, C. E. (2010). Custody and parenting time. In M. E. Lamb (Ed.), The Role of The Father in Child Development (pp. 201-235). USA: John Wiley & Sons.

Gindes, M. (1998). The psychological effects of relocation for children of divorce. Journal of the American Academy of Matrimonial Lawyers, 15, 119-148.

Kelly, J. B., & Lamb, M. E. (2003). Developmental issues in relocation cases involving young children: when, whether and how? Journal of Family Psychology, 17(2), 193-205.

Khunou, G. (2006). Fathers don't stand a chance: experiences of custody, access and maintenance. In L. Richter, & R. Morrell (Eds.), Baba: Men and Fatherhood in South Africa (pp. 265-277). Cape Town: HSRC Press.

Small, V. (2005). Children's Best Interests After Divorce: A Guide for Mobility Assessment. Fong Ailon Canniff. Retrieved from www.worldpsych.ca/Mobility_Guidelines_Handbook.pdf