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Joint custody father wonders how court will handle mother's desire to move (with child)

Your Question:
I have been divorced about 2yrs now, my ex and I agreed on 50/50 and there is no primary parent, I pay daycare and she pays health insurance to keep it even as we can. She has gotten remarried about 4months ago and now wants to move away with my 5 yr old daughter, all of my side of the family is here and she is involved in school and also many out of school activties here. What are the chances of keeping child here since I have really done nothing wrong to modify custody. Just so you know I have hired a lawyer and the court date is coming up just looking for some more answers starting to get nervous, thanks and hope to here from you soon.

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My Answer:

Thanks for writing.

I had a number of other questions for you, and you also let me know the following information:

  • She is moving about 600 miles away

  • She has no family in the new city, and her husband moves about once per year due to his job.

  • You have a final judgment for joint and shared custody.

  • Your court date is around 3 months away.

First, you want a lawyer who is experienced with move-aways. Every state has its own particular rules on move-away cases, and you need an attorney who is up to date on the latest opinions and trends. If you didn't specifically ask your attorney about this, ask. Ask how many move-away clients she/he has had, ask about your judge's attitude with regard to move-aways, and ask how often his/her move-away clients have prevailed.

Each parent is going to be arguing why its best for the child to move or not move.

Because you have a 50/50 arrangement, and because you have final orders on shared custody, neither parent necessarily has a better shot than the other on this move-away. If the child is clearly bonded better with one parent over the other, and there is a clinical psychologist willing to testify to that, obviously that parent would have an advantage.

The family law judge should presume that disruption is bad for a child. Stability and consistency are good. So, you'll need to defeat the mother's reasons why moving is better than the stability of staying local. It has nothing to do with whether you did anything wrong or not. It's asking the court, "What's best for the child at this point?"

Obviously, there are a few things that you wrote that has me thinking you stand a better chance at prevailing here than the mother:

  • The child has started school locally. That said, it's easy enough to argue that she's not enmeshed in the school with friends, blah blah blah. She's only in kindergarten. It shouldn't be too tough on her to start 1st grade in a new school, where she'll finish her elementary education. So, this point is worth mentioning, but not a deal-breaker.

  • The child has extended family in your town. It'd be worthwhile to have your parents, sister(s), brother(s) all write affadavits as to how often they see the child, and briefly describe their bond with the child... especially if she has any counsins with whom she has developed nice bonds. You should mention how the 600 mile distance will impose a significant burden on the child's ability to maintain these supportive and deep bonds with her extended family. It's worth noting that the child is NOT moving to a place where similar bonds can be nurtured with the maternal side of the family. This area is important.

  • What may be a slam-dunk for you is if you can establish that the husband has historically moved every year. If he's no longer in the same type of work, then it's not relevant. But if he's in the same type of work, the mother may argue all she wants that THIS move will be the last one, but it's not going to sound kosher to a judge; and it's certainly not a guarantee that the mother can make.

For the last reason, I strongly recommend that you build evidence that documents all of the husband's residences over the past 5 to 10 years. It would be worth doing a deposition on him.

A deposition is admissible testimony wherein the husband has to come to your attorney's office, a court reporter swears him in, and he answers your attorney's questions. All you want your attorney to do is get this guy, under oath, to confirm what you told me-- that he moves once a year (or so) due to his job.

Then, I really think you're home-free. You go to your hearing, and you line up all the reasons why living mostly with you is most stable. The mother argues her reasons.

Then your attorney says, "Look, her husband has moved around the state 8 times in the past 10 years per his own sworn testimony. Allowing the child to stay with the father - where extended family also lives - is pretty good assurance that this child will have stability. Allowing the child to move with the mother seems to indicate that the child will be moved every year or two, due to her husband's job. My client thinks that having the mother stay local is best for the child, but if the mother must move, my client is willing to assume primary care for the child and offer extensive time with the mother as well."

That's the basic approach. But you also need to combine that with an attorney who's on top of his/her game with regard to move-aways in your state, so in case there are any particular threshholds or caselaw to surmount-- you're covered in that area too.

Remember, this isn't about which parent is better. You have joint/shared custody, so the court assumes you're equal in that regard. The argument is about why the move is or is not best for the child.


This website gives common sense advice that is not intended to act as legal guidance nor psychological guidance. The author is neither an attorney nor licensed psychologist. For specific legal guidance or specific psychological guidance, consult with a licensed professional.

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