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Trying to Relocate with Your Children After a Divorce? What You Need to Think About.


When parties divorce, there are always unforeseen circumstances that arise in the future.  It’s not uncommon to experience substantial change in life events such as a change in career (particularly if you are in the military or work for a corporation that is prone to relocating personnel), or potential new spouse (even when your client “swears” he or she will never date again – don’t be surprised!), or other circumstances leading to a relocation.

Your family law attorney will try and anticipate any potential circumstances and either address them in your separation agreement (if you and your spouse agree to enter into one) or with the Court. However, relocating with children after a divorce is not usually foreseeable and often leads to subsequent litigation that can occur months or even years after a divorce is finalized.

Relocation cases are very challenging, both to the parties, the Courts, and especially for any mental health professionals working with the children. There are many logistics to take into consideration. Will the relocation be cross-country or a car-drive away? Are the children old enough to travel unaccompanied? What will the cost of transporting the children entail?  If accompanied by an adult, will the adult stay over at the destination for the weekend?  Should the non-custodial parent have the majority of the holidays and school breaks?  What is an appropriate amount of time for the summer and will the custodial parent be willing to forego many of these non-school times simply to relocate.

While family law attorneys litigate for our client’s interests in a marital home, bank accounts, retirement accounts, and equity in businesses, nothing is more precious, hard-fought and polarizing as determining custody of children, particularly when one parent is faced with greatly reduced access in a relocation case.

A parent’s rights and ability to raise his or her children are extremely important.  The Supreme Court has termed the right to rear one’s child “essential.”[1] The right to rear one’s child constitutes a right “far more precious . . . than property rights.”[2] The interest of parents in their relationship with their children is a fundamental liberty interest protected by the Fourteenth Amendment to the United States Constitution.[3] A parent has a recognized right to the companionship, care, and custody of her or his minor children that she or he cannot be deprived without due process of law.[4] Article 24 of Maryland’s Declaration of Rights protects this same liberty interest.[5]

To determine custody in Maryland, the trial court is required to determine the best interests of the minor child.[6]  The term “best interests” is commonly used by lawyers and judges in the Courtroom. In Montgomery County v. Sanders, the Court of Special Appeals set forth a list of factors that a trial court should consider to determine the children’s best interests.[7]  Maryland Appellate Courts have held that “[t]he respective interests of the parents are relevant … and should be considered by the court; but the interests of the child take precedence over any conflicting interest of either parent.). . . . Certainly, the relationship that exists between the parents and the child before relocation is of critical importance.”[8] 

The trial court typically looks to protect the consistency and stability of the children.  While not specific to relocation, the following cases demonstrate an appropriate exercise of the trial court’s discretion.  In Levitt v. Levitt, the best interests of the child are presumed to be “a continuation of custody, recognizing the importance of a child’s need for continuity.”[9] In Roginsky v. Blake-Roginsky, the Maryland Court of Special appeals upheld the trial court’s award of custody to the appellee and mother, Ms. Blake-Roginsky.[10] The trial court awarded custody to the mother as she had “been the primary custodian and caretaker for a significant period of time prior to trial,” because the “parties could not cooperate, joint custody was not realistic,” and “because the child was functioning well, citing consistency of environment as a primary reason.” [11]

Any party considering a relocation should first and foremost, should consider these factors, strongly consider any impact the relocation may have on their children, and try to determine a reasonable plan to keep the children as involved with the non-custodial parent as possible.  New technology such as iPhones, Facetime, and Skype permit a level of face to face access that did not exist in recent years. The trial court will also want to hear testimony and evidence of the proposed home, schools, extracurricular activities and other information in order to form its determination as to whether to permit a relocation and determine an appropriate access schedule.


[1] Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

[2] May v. Anderson, 345 U.S. 528, 533 (1953).

[3] Santosky v. Kramer, 455 U.S. 745,753 (1982).

[4] Stanley v. Illinois, 405 U.S. 645, 651-52 (1972); Montgomery County v. Sanders, 38 Md. App. 406, 414, 381 A.2d 1154 (1978); see Troxel v. Granville, 530 U.S. 57, 67 (2000).

[5] Article 24 of the Maryland Declaration of Rights and the Fourteenth Amendment to the United States Constitution have the same meaning and affect, thus, Supreme Court interpretation of the Fourteenth Amendment function as authority for interpretation of Article 24. Pitsenberger v. Pitsenberger, 287 Md. 20, 27, 410 A.2d 1052, appeal dismissed, 449 U.S. 807, 101 S.C. 52, 66 L.Ed.2d 10 (1980).  A parent has a protectable liberty interest in the care and custody of his or her child. Weller v. Department of Social Servs., 901 F.2d 387, 391 (4th Cir. 1990).

[6] See Md. Ann Code, Family Law Art. § 9-104, Taylor v. Taylor, 60 Md. App. 268, 482 A.2d 164 (1984), judgment vacated, 306 Md. 290, 508 A.2d 964 (1986), Montgomery County v. Sanders, 38 Md. App. 406, 420, 381 A.2d 1154 (1977), and Ross v. Hoffman, 280 Md. 172, 372 A.2d 582 (1977).

[7]  38 Md. App. 406, 420, 381 A.2d 1154 (1977) (“The criteria for judicial determination [of child custody] includes, but is not limited to the 1) fitness of the parents; 2) character and reputation of the parties; 3) desire of the natural parents and agreements between the parties; 4) potentiality of maintaining natural family relations; 5) preference of the child; 6) material opportunities affecting the future life of the child; 7) age, health and sex of the child; 8) residences of parents and opportunity for visitation; 9) length of separation from the natural parents; and 10) prior voluntary abandonment or surrender.” (internal citations omitted).)

[8] See Braun v. Headley, 131 Md. App. 588, 608-609; 750 A.2d 624 (2000) (including its analysis of Domingues v. Johnson, 323 Md. 486; 593 A.2d 1133 (1991)).

[9] Levitt v. Levitt, 79 Md. App. 394, 556 A.2d 1162, cert denied, 316 Md. 549 (1999).

[10] Roginsky v. Blake-Roginsky, 129 Md. App. 132, 141 (1999).

[11] Id.

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