|Judge is usually the deciding factor
in a divorced parent's move
mobile society means that more divorced parents are relocating for
better jobs or a better life -- and they want to take the kids with
them. Divorced parents who want to move out of state -- or even
100 miles away within the same state -- should be prepared for the
court that's overseeing the terms of the divorce to look at a number
of elements before allowing the move.
The most important factor is the type of custody arrangement,
says Nadine Roddy, senior research attorney at the Charlottesville,
Legal Research Group.
"If it was a traditional arrangement and one parent
has sole custody and the other has visitation rights, it's much
easier for the custodial parent to relocate out of state than if
there's joint custody, where parents share physical custody."
But joint custody is pretty much the norm.
"The model of mom getting sole custody and dad
appearing on the Fourth of July has pretty much been abandoned,"
says Roddy. "Dads are more involved."
The next factor is whether the state has a statute that specifically
addresses relocation. Roddy says Nevada bars the custodial parent
from permanently removing the child from the state without court
permission. On the other hand, some states say the custodial parent
has the absolute right to move and the burden is on the other parent
to file a restraining order.
It's a battle that's being fought in family courts
across the country.
Peter Herard of Palm Springs, Fla., says his ex-wife
wanted to take their two children, ages 9 and 5, and move to Georgia
to be closer to her family.
"I didn't think it was a good idea that they move.
She called with different setups -- you can have them all summer,
etc.," says Herard. "It might have worked out to be more time with
them but it wouldn't have been consistent. I'd go without seeing
them for nine months and then see them for three months -- it's
like being with a stranger."
The judge apparently didn't think it was a good idea
either. Herard won his court case and his ex-wife and children remain
Move has to improve quality
Relocating to be nearer to family is a reason courts will often
accept, says Roddy, but the custodial parent needs to show the move
will result in an improved financial situation or that the extended
family could provide a more stable family life.
"Needing a change isn't good enough," according to
Roddy. "It's also helpful for the parent who wants to relocate to
have as much concrete evidence as possible as to what the child's
life will be like -- schools, advantages the new area may offer
-- the more concrete the plans are, the better."
Relocating for a better job or to further training
or education also are reasons that courts look at favorably, but
those reasons will be discounted if the court thinks the custodial
parent is vindictive.
"If it doesn't pass the 'smell test' -- if they really
sense the primary objective is to deprive the other parent, they
won't grant the relocation no matter how good it looks on paper,"
The court may sense the relocation is vindictive if
there's a history of litigation between the two parties -- perhaps
there have been hassles over visitation or child support. In that
case, the custodial parent will have to overcome any damage to his
or her credibility and prove to the judge that the motive is pure.
Even if there is no history of "he said, she said"
regarding custody, Roddy says the custodial parent should be prepared
to make some generous concessions regarding visitation.
"How willing is the parent to offer extended blocks
of visitation time to the parent staying behind? A big chunk of
time in the summer and over holidays is viewed as being willing
to foster the child's relationship with the other parent."
Roddy suggests that parents may want to consider relocation
clauses in the initial divorce agreement. But, she cautions, some
courts don't feel bound by that agreement. It's the court's prerogative,
she says, to assess the child's best interests and it will freely
ignore the agreement if necessary.
-- Posted: June 6, 2003
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