Parent Relocation as Grounds for Modification

What happens when the parent who has primary care of the child decides to move? Of course, as with most things relating to child custody, there are no clear answers. But in this case, there at least is some guidance.

Iowa Code 598.21D provides that, if the parent who has primary care moves more than 150 miles from the child's home at the time the custody was granted, the move may be considered a substantial change in circumstances for purposes of modification. 

The statute further provides that the Court shall, if it determines this is a substantial change in circumstances, at a minimum, modify the custody arrangement to preserve as nearly as possible the relationship between the child and the non-relocating parent. This can include extended visitation during the child's breaks from school and scheduled telephone contact. 

As you may have noticed from reading the language of the law, the Court does not have to consider the move to be a change in circumstances warranting modification. Rather, it may do so. Do not assume that your ex's move is absolutely going to give you a leg up in a modification. Further, it does not presume that custody will change to the other parent, but only provides that visitation may be amended to make sense with the new geographic reality.

In fact, modification of primary care to the other parent is difficult. In general, modification of primary care is a two-step process: the parent seeking modification must prove both a substantial change in circumstances and that the parent seeking modification will provide superior care. The move over 150 miles will potentially meet the burden on the first step, but says absolutely nothing about the second step. This statute gets the non-custodial parent, at best, halfway there. 

The Court of Appeals has also repeatedly considered whether specific language in an agreement between the parties, or even ordered by the Court, is enough to change custody. That is, parties and district courts will sometimes put into court orders that, if one party moves, the other party will automatically get custody or different visitation. The Court of Appeals has stated several times that these sorts of orders are but one factor to consider in a modification; ultimately, the best interests of the child will control. 

Here's the bottom line: the Court will realize that one parent moving more than 150 miles away from the other is probably going to change how the parents operate on a day-to-day visit. It is likely that the visitation terms will have to be changed. It might even be severe enough, considering all factors, to change primary care completely. But the Court is not going to assume any of this, and will consider each case on its own facts.