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Child Custody and the “Move Away” Order

We live in a mobile society, and people relocate for various reasons. New job opportunities, going back to school, living near extended family support systems, finding a lower cost of living… all of these are solid reasons to move.  But what happens where there are kids involved?

Does the custodial parent have the right to move away without the consent of the noncustodial parent?  If the noncustodial parent decides to move, does the custodial parent have an obligation to pay for visitation travel expenses?  Every case is different, so I can’t answer this one for you.

I personally experienced this dilemma.  At the time of my divorce, my ex and I lived in a small town in California.  There were limited job and educational opportunities for me there, and another big consideration was our home.  I couldn’t afford to buy him out, and he couldn’t afford to keep it on his own.  I also wanted to be near family in the Midwest.  Enter the move-away order.

My ex, being the piece of work that he is, didn’t slap me with the order until I had sold our house, put all my household items and furniture on a moving truck, rented a house in my new city, registered for college classes, and registered the kids for school and daycare.  He figured I’d cave.  And I did, a little.  He threatened to drag out of proceedings unless I agreed to take less money.  Which I did.

I had done my homework ahead of time, and I knew that I had done all the right things to prepare for the move-away issue, but my ex also had the right to take me to court over it.  My choice was to give up some of the money and move now, or get an apartment and tread water for a year and wait for our case to go to trial.  I chose the former, and I’m glad I did.  That same choice isn’t always right for everyone, though.

Whether you are the custodial parent wanting to move away or the noncustodial parent fighting against the move, here is a list of things you can do to prepare for YOUR move-away order. (original list available on DivorceNet.com)

Strategies for the Move-Away Parent

The following should be considered by the parent who would like to relocate to another metropolitan area:

  1. Do not interfere in the relationship between the children and the other parent.
  2. Avoid saying anything bad about the other parent to or in the presence of the children.
  3. If the other parent is not seeing the children on a regular basis, maintain a calendar that note when that parent actually spends time with the children.
  4. Be prepared to provide documents showing the reason for the move.
  5. Make sure that you will have a source of income after the move is completed.
  6. Move to a location where the moving parent has extended family.
  7. Do not wait until the end of the children’s summer vacation to file papers in court requesting the right to move with the children. File your papers at least four months prior to the scheduled move. This will provide the court with sufficient time to schedule a hearing.
  8. If this is the initial custody determination and you anticipate that you will want to move in the future, do not permit the custody order to have any move-away restrictions.
  9. Make sure that the custody order provides you with sole physical custody of the children.

Strategies for the Parent Objecting to the Move-Away

The parent who is objecting to the move also has strategies that, if followed, can maximize that parent’s ability to resist the move.

  1. In the initial custody order, make sure that final judgment provides that physical custody of the children is awarded jointly to both parents and that neither parent can change the residence of the children from the metropolitan area without the court’s permission.
  2. Try to get as much time with your children as possible. Be sure to exercise all of your visitation rights.
  3. Insist that the child custody order reflect that the parents are awarded joint physical custody of the children.
  4. Be involved in your child’s schooling, medical care and extracurricular activities.
  5. If the custodial parent requests the right to move the children, insist that the court appoint a social worker or a mental health professional to conduct a thorough evaluation of the children and the parents.

And here is the stuff that judges will consider:

  1. If the move-away request is made in the course of the initial child custody determination, the court’s decision is to be based on a determination of what arrangement is in the best interests of the child. (See section 3, below)

  2. If the request is presented as a modification of an existing child custody order, the manner in which the request is considered depends upon the nature of the existing custodial arrangement.
    • If the parents are sharing physical custody of the child (i.e. at least a 60%/40% sharing) the decision is based on what is in the children’s best interests. (See section 3, below)
    • If one parent has physical custody of the child for more than 60% of the time, that parent will be presumed to have the right to move the child without the consent of the other parent. In such cases, the non-custodial parent will be successful in preventing the move if he/she can convince the court that
      1. The move is being made in bad faith, i.e. is motivated by the custodial parent’s desire to reduce or eliminate the other parent’s contact with the children, or
      2. The move would be detrimental to the welfare of the child. In determining if the move would be detrimental to the child, the court is to consider the effect the move will have on the child’s relationship with the other parent after the move.
  3. In determining what custodial arrangement is in the children’s best interests the court is to consider, among other things, the following:
    • The children’s need for stability and continuity.
    • The distance of the move.
    • The age of the children.
    • The children’s relationship with both parents.
    • The relationship between the parents, including their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests.
    • The wishes of the children if they are mature enough for such an inquiry to be appropriate.
    • The reasons for the proposed move.
    • The extent to which the parents currently are sharing custody.
    • The parent who is opposing the move-away request has the right to request a child custody evaluation by a court-appointed expert.

So do your research, and talk to your attorney before you file anything in court.  If the issue isn’t too adversarial, try to work it out with your ex for the children’s benefit. If you don’t have any type of honest communication with your ex, then for pete’s sakes, don’t tell them that you are planning to move or planning to prevent them from moving.  That’s what attorneys are for.  If you are going through your initial legal proceedings related to divorce and custody, I encourage you to get the move-away issue into the original documents.  That way, there’s very little legal ground to challenge it later.

I want to note that this is the EXACT list of information that I referred to when planning my move.  I wanted to share it with you because it is one of the only comprehensive lists that I found when I was getting divorced.  There’s a lot of shoddy information on the internet, and most of it is either outdated, advertising-based, or just plain wrong.  I showed this list to my attorney back when I was preparing for my future, and he agreed that it was sound advice.  That’s why I’m sharing it with you.

 
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Posted by on April 4, 2011 in Custody, Divorce, Parenting

 

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Welcome

Welcome! Since you’ve found this blog, it probably means that you have a family issue going on right now. While I’m sorry to hear that you’re struggling, I’m glad you’re here!  Knowledge is power, and I hope to offer some tidbits to help you navigate the murky world of family law.  If you haven’t already read my disclaimer, please do. I am not an attorney or legal professional, and nothing contained on this blog, in my emails, tweets, or facebook posts, or any other communication from me or other readers should be construed as legal advice.  Just think of me as your friend.  Sometimes you listen to your friends, and sometimes you don’t, but the choice is completely YOURS.

I hope you are able to find something meaningful or helpful to you on this blog, and I welcome your comments.  Have a question? Please email me, and I’ll do my best to post a useful answer.  Thanks for stopping by!

 
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Posted by on April 4, 2011 in General

 

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