Child Custody And Divorce: Free Legal Advice
Child Custody And Divorce: Free Legal Advice
Child Custody And Divorce: Free Legal Advice
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This question comes up a lot. This question is very likely the one that child custody lawyers answer the most frequently, in a post-divorce situation. The answer, from a legal standpoint, is a very definite "maybe".
That's because the answer very much depends on just what it is that you're asking, doesn't it? What you are really asking is "May I move out of state, and take the children with me?" We'll come back to this point. We'll examine just what it is that you're asking, at the end of this chapter. First, let's examine the legal standard, the rules that apply to the judge.
This is necessary because just about every divorce judgment has a paragraph in it that says "The custodial parent will not remove the domicile of the minor children from this state without the written permission of the judge in this case." So you need court permission, you need for your divorce judgment or visitation order to be amended, to provide that you may move out of the state. What are the requirements? What do you need to do to get such an amendment to your order, especially if the matter is contested by the other side?
Some states require a determination that the move is in the best interests of the children. That means that the judge must hold a hearing, whether brief or lengthy, and must make a determination on all of the twelve factors that we've discussed earlier. A very cumbersome process, and, in addition, it just takes too darn long to get into court, when all of those factors need to be examined. But your state may have that language in it's statute or case law, and you need to discuss this with your lawyer. (With your lawyer, not with me: I don't know what your state requires, if you don't live in Michigan).
Many states, including Michigan, recognizing that the process needed to be simplified, adopted an easier method for examining the proposed move, and listed several factors that apply, and said further that these factors, and no more, are what determines whether or not the court will give permission for the move. Which means this: if you meet the criteria, you get permission. If you don't meet the criteria, you don't get permission, and further, the court is not going to hold a big cumbersome hearing on all those factors that make up "the best interest of the child". No. The court is going to hold a short hearing on the factors governing moving parents, and then make the decision.
Those factors read pretty much as follows:
1. Whether the prospective move has the capacity to improve the quality of life for both the custodial parent and the child;
2. Whether the move is inspired by the custodial parent's desire to defeat or frustrate visitation by the noncustodial parent and whether the custodial parent is likely to comply with the substitute visitation orders where he or she is no longer subject to the jurisdiction of the courts of this state;
3. The extent to which the noncustodial parent who resists the move is motivated by the desire to secure a financial advantage in respect of a continuing support obligation; and
4. The degree to which the court is satisfied that there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parental relationship with the noncustodial parent if removal is allowed.
[Note for all of you scholars out there: this test comes from the Michigan case: Constantini v. Constantini. In the Michigan case, the Michigan courts decided to adopt the rule from a New Jersey case, which was entitled D'Onofrio v. D'Onofrio. For those of you in states other than Michigan, you may find that your state has adopted the "D'Onofrio test" which governs this area of the law, just as Michigan has done. If you want to read the Constantini case itself, I have provided page scans from the three-page opinion, which scans come from West Publishing Company's Northwest Reporter.
After reading the respective pages, hit your 'back' button to return here.
For West Publishing Group's home page/catalogue, try this link: West Publishing
OK, back to my chapter]
As to factor #1: does the proposed move have the "capacity" (you notice they didn't say 'probability', or 'likelihood') to improve the life of both the custodial parent and the child? If a waitress has an opportunity to qualify for Dental School, or a trucker has an opportunity to become a trucking terminal manager, with the corresponding Raise In Pay ("did you say "raise in pay?" "I did. A RAISE in pay...), then obviously the quality of life is going up, and presumably the child will benefit from having all this extra money around, you can expect that the judge will be supportive of the effort. Conversely, if you are a dental assistant, earning ten bucks an hour, and you want to move from Michigan to Mississippi, where you will be a dental assistant, earning nine bucks an hour, you can expect that the judge will not be supportive at all. Not one bit. The obvious reason is NOT good enough (we'll cover the obvious reason shortly), and permission to move is likely to be denied.
As to factor #2 (read it again, it's just above): your record, in the past, becomes VERY VERY important here. If you have a history of withholding visitation, or not cooperating, you may expect that court permission for the move will be denied. If your history is wonderful, if you have been a cooperative parent, you may expect that the court will reward you for that, and that anything 'close' is going to go your way, that you will receive the benefit of the doubt, as they say. Why not? You deserve it.
As to factor #3 (read it again, it's just above): You may be concerned about money if you want to. Just don't mention it. If you do, you will have fallen into the trap, and be labeled as "this person is withholding consent because this person wants his/her support obligation cancelled. Isn't that unreasonable?" Yes, it's unreasonable. That support obligation will never be cancelled. Even ASKING, or APPEARING TO ASK that the support obligation be cancelled labels you as a nut case, one who is far more concerned about the money than about the kid(s). Judges are specially trained to deal with people like you. It's a pretty short course.
As to factor #4 (yes, read it again. It's just above): Pause. Did you read it again? Very good. Now I'm going to quote it for you, and you need to read it [yet] again.
4. The degree to which the court is satisfied that there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parental relationship with the noncustodial parent if removal is allowed.
You have to provide the non-custodial parent more than the non-custodial parent had prior to the move. You have to. If you don't, then you're not getting past this factor, and your request will, and likely should, be denied. Do a little simple math: if the non-custodial parent had (prior to the move out of state) "every other weekend, plus 2 weeks in the summer", then that parent had 63 overnights with the child [25 sets of Friday and Saturday night, plus 13 nights during the 2-week summer]. You propose that the child go stay with the non-custodial parent for three weeks in summer, after the move? 21 overnights? This will NOT fly. Expect to lose, because you will. If you propose, instead, that the child spend ALL of July and August with the non-custodial parent, then that's about sixty days, and if you throw in "...and every Spring school break..." there's another seven to ten overnights, and you've made it. Who could argue with formerly having 63 overnights with the child, and now having 70, over the course of a year? While we're being reasonable, let's talk about the airfare: if you're moving from Detroit to Toledo, it's only an hour away, but it's a different state. It's a one-hour drive. I HOPE that you're now smart enough to say "...and I'll do the driving, both drop-off, and pickup...." Who could argue with that? Not the judge. Oh, I said "airfare". If you're moving from Michigan to San Francisco, well, you can do the driving if you want to (and, if you do, you're still winning...), but more likely that child will be flying. It's expensive. Who's picking up that expense? If the answer is YOU, then you win. If the answer is THE OTHER SIDE, then you lose. Even if you propose a straight 50/50 split of that expense, you're likely to lose: the other side didn't have that expense before now, did they? You need to show, through all of this, that you are:
a. improving your life, and that of the child
b. not harming, and maybe even improving, the relationship of the child to the other parent, and
c. not dropping a financial bomb into the other parent's budget.
If you can show all of this, then you win. Permission to move (with the child) will likely be granted. If you can't show all of this, to one degree or another, permission to move (with the child) will likely be denied. You can always move by yourself, but leave the child here, with the other parent. Oh, and by the way: the visitation you proposed for the other parent will likely be awarded to you, after custody is changed. What do you mean "two weeks isn't enough"? You just sat there, in that witness chair, and said that you thought two weeks was peachy-keen, FOR THE OTHER PARENT! Two weeks is what you get. Enjoy.
I have really, truly, run out of space on this page, for this chapter. Move with me to Part Two, by clicking here.
