The Grays were before the Idaho Supreme Court on a case where Ms. Gray unilaterally relocated the parties’ son to Costa Rica. The parties had an Idaho consent custody order that provided for Mr. Gray, who was living away from Idaho (Wyoming, then Utah, and then Wyoming again), to have certain established amounts of access to their minor son each calendar year. All access was to begin and end at the child’s place of residence, which, at the time of the agreement, was Idaho. Ms. Gray rekindled a relationship with a prior boyfriend who resided in Costa Rica, and decided that she was going to move to Costa Rica with the child. During trial, she testified that she did so surreptitiously because, if she had told Mr. Gray, he would have attempted to stop the child’s relocation. Mr. Gray ultimately found out that the child was living in Costa Rica after he filed a motion to modify the custodial arrangement when Ms. Gray stopped letting him have access to the child. Ultimately, the Magistrate decided that Ms. Gray was required to return to the coterminous United States with the child, where she would serve as primary residential custodian, and that if she did not return herself, the child would return and reside with Mr. Gray as the primary residential custodian. Ms. Gray appealed on several points. The most interesting to the international family law practitioner relates to burden of proof. Typically, when a motion to modify custody is filed, the parent who seeks modification would bear the burden of proving that a modification is warranted and in the child’s best interests. In this case, Mr. Gray filed to modify the custodial arrangement, but without even knowing the child was living outside of Idaho.
Given Ms. Gray’s behavior in relocating the child, and keeping that information from Mr. Gray, the court determined that placing the burden on Mr. Gray in this situation would be unfair as it would provide an incentive to Ms. Gray to not seek permission to relocate, and instead force Mr. Gray to file the motion to modify. Therefore, “[a] relocating parent should be encouraged to seek permission to ensure the stability of the child before the move is sought – not encouraged to act unilaterally and then assert an after-the-fact justification.” “For these reasons, in Idaho, the moving parent has the burden of proving relocation would be in the best interests of the child before moving in violation of a previous custody arrangement.” In this particular case, even though the custody order had no prohibition on Ms. Gray moving, nor did it have any explicit language saying she could move, the court found that a relocation frustrated the purpose of the existing custody arrangement as it was drafted, so she would have been required to seek permission to relocate from the court or Mr. Gray.
As a note, it is unclear whether Ms. Gray resides in Costa Rica with the child right now, or whether she abided by the modified custody order. The initial custody order was only quoted in the opinion in part, so it is unclear whether Mr. Gray had a “right of custody” as that is defined under the Hague Abduction Convention, so it is not clear whether he had, available to him, the option of seeking the child’s return by filing a return petition in the Costa Rican courts, or whether he was going to be reliant on a Costa Rican court enforcing an Idaho custody order. Also, as a note, jurisdiction was not appealed. At the time Mr. Gray filed his modification suit, no one was residing in Idaho. However, given the court’s description of how Ms. Gray and the child came to be living outside of Idaho, it likely was deemed a temporary absence sufficient to allow Idaho to undertake the case. There was some brief discussion about Mr. Gray’s concerns about the Costa Rican courts and whether he would have sufficient access to them to enforce his rights. While Ms. Gray conceded Idaho jurisdiction by not appealing, that does not necessarily mean that Costa Rica does not have jurisdiction under its domestic laws to further modify the order.