ACADEMY DRAFTS MODEL RELOCATION ACT

At its annual meeting last year the American Academy of Matrimonial Lawyers adopted a proposed Model Relocation Act designed to deal with this increasingly frequent and contentious issue upon which law seems to be developing nationwide. The Act is in the same format as is used by the National Conference of Commissioners on Uniform States Laws, using brackets for words that might be dubious or debatable.

The interesting thing about the AAML's Model Relocation Act is that it does not really take a position on the substantive question at the heart of this great national debate - when a custodial parent should be allowed to move the children away and destroy visitation opportunities. As the drafters' introductory commentary makes plain, this draft is not meant to be a uniform act, as it presents several significant issues in the form of alternative statements. Instead, this "model act" format is designed to facilitate independent consideration of controversial issues by the various state legislatures. The AAML hopes to make consideration of relocation cases more orderly, and to ease the task of legislating on the subject for legislators in the various states. The introductory comment in fact concludes with the statement that: "The proposed Act is definitely not intended to be a basis for federal legislation. Family law issues are properly addressed by state law."

The Act sets out in very orderly fashion the various categories of relocation disputes you can have (for example "pre-existing court order" or "no pre-existing court order"), and addresses the delicate question of whose obligation it is to take the matter to court first. It sets up rules for deciding on questions of "relocation" and defines that as a change of the child's principal residence for a period of sixty days or more, but not including a temporary absence. The explanations found in the drafters' comments to each section are considerably more helpful than most comments to model acts generally are. The notice requirement in the new Act's Section 201 differs considerably from what is found in most state codes, and is closer to the Virginia legislative solution found in Codes §§20-124.5. It requires notification for all relocations, rather than applying it only to a certain category of major moves and then attempting to define major moves by geographical distances, etc. There is a Section 205 allowing courts to order that the child's new location be kept secret, but only upon a court finding that the health, safety or liberty of an adult or a child would be unreasonably put at risk by letting the other parent know where his children are.

This Act requires that if notice has been given in the statutorily required form, it is up to the other parent to object by filing a court proceeding seeking court orders against relocation within thirty days of receipt of the notice. The petition, and the responsive pleading, must be accompanied by an affidavit.

On the real substantive question of whether there should be a modification of custody on grounds of the obvious change of circumstances that a relocation constitutes, and on the allocation of the burden of proof, Sections 404 and 407 simply set out the alternative positions that a state, whatever the prevailing politics there, might take. Section 405 very usefully sets out eight factors to be considered in deciding on the proposed or otherwise challenged relocation, and Section 406 states factors not to be considered. Nevertheless, the AAML stays out of the swirling sexual-political debate on policy here. The not-to-be-considered factors are just whether there has been a temporary order, and whether one of the parties has stated that she will relocate anyway no matter what the court says. Finally, the Commissioners add a Section 409 providing for sanctions to punish unwarranted or frivolous relocation proposals and objections.

The American Academy of Matrimonial Lawyers is located at 150 N. Michigan Avenue, Suite 2040, Chicago, Illinois 60601. Its phone number is 312-263-6477.

4/1/98