July 12, 2018
Leaving on a Jet Plane with the Kids? Not so Fast
Q: My ex got a good job out of state and wants to move and take our children, which will make it difficult, if not impossible, for me to see the children under our current custody agreement. Can my ex move our children out of state? Is there anything I can do to prevent this?
A: The short answer to your question is: it depends on what your current custody agreement or Order states. If your custody agreement contains language that restricts how far either party can move, then you may be able to prevent the move. If your custody agreement contains language that requires ample notice to the other parent of a contemplated move, then you may be able to prevent the move. But the reality is that without a court Order that contains specific relocation language, you are not fully protected and your options for relief (preventing the move or modifying the custody arrangement) may be limited to filing a request for a custody modification, which is costly.
To be clear, a custody agreement is different than a court Order. Although a custody agreement can be incorporated into a court Order, the two are not one and the same. A custody agreement is any written agreement signed by both parents that sets forth each party’s access schedule with the children, but for the children’s protection (as well as your own), it is best if an attorney drafts the custody agreement so that it contains all the language needed to protect you and the children, especially in a situation like this. A court Order may be obtained by either: (1) filing a custody agreement that is incorporated into a court Order, or (2) after a trial, a Judge issuing a court Order that sets forth the custody determination. Regardless of how it is obtained, a court Order gives you more protection and more options for relief, but also may have deadlines for requesting relief, which I will discuss in a future blog.
Generally speaking, a parent cannot move the children out of state without obtaining the consent of the other parent (if a custody agreement already exists) or a new court Order (if a court Order already exists). If one parent moves the children out of state without getting the consent of the other parent, the other parent could file a complaint for breach of contract (if there is only a custody agreement) or a petition for contempt (if there is a custody court Order). Ultimately, if a parent moves the children out of state without following the language of a custody agreement or Order, they could be ordered to pay the other parent’s attorney’s fees and even potentially face jail time if they have violated a court Order.
If both parents agree to the proposed move and they execute a written agreement that sets forth a new access schedule, the agreement can be incorporated into a court Order relatively easily for the utmost protection and enforceability. However, even when parents agree to a new access schedule, the Judge still has the ability to deny a proposed Order if the Judge does not believe that the new access schedule would be in the best interests of the children. This rarely happens, but when it does, most Judges will schedule a conference or hearing that both parents must attend to give both parents the opportunity to explain to the court why they believe the new access schedule is, in fact, in the best interests of their children.
If both parents do not agree to a new access schedule, either parent may file a complaint with the court to seek primary custody of the children. If a custody Order already exists, one parent may file a request to modify the current custody Order. In either case, the court will make its judgment based on – you guessed it – what it believes is in the best interests of the children, which is, of course, subjective, but the court tries to limit the subjectivity as much as possible by considering many other required factors as well. Alternatively, the parents can (and should) utilize a mediator, co-parenting counselor or Collaborative attorney to attempt to resolve the issue as well, which services are significantly less costly than litigation. Nonetheless, if those resources do not prove to be helpful, then the fallback option always remains: litigation. So it is always worth giving the alternative dispute resolution methods a try.
If a trial is necessary, the court must weigh the benefits to the children if the move is permitted against the disadvantages of losing visitation time with the non-custodial parent. This is a tough balancing act that courts are faced with deciding – and which family lawyers are faced with defending or opposing – every day. Attorneys are needed to make the case for each parent, especially when there are no bad actors, i.e. no one acting out of malice to use children as leverage or attempting to keep the children away from the other parent.
The court considers many factors, including, but not limited to, the effect on the children of one parent’s having a better paying job, securing better educational opportunities, entering into a new marriage which may provide greater stability, proximity to better medical care, moving closer to the children’s extended family, etc. – along with the children’s ages, genders, and, if appropriate, the children’s preferences. The court takes all of these factors into consideration in hopes to render a decision that is best for the children, short and long term.
I am always trying to inspire my clients to reach their divorce and/or custody goals by providing insightful and empowering legal advice. I thrive on helping clients understand how to successfully navigate the changes in their family dynamics to preserve family relationships and achieve the best outcome possible for the benefit of their children. When I’m not helping clients, I am running around with my husband and our two young and extremely active children and our Pug, Wali.
DISCLAIMER: The materials available on this blog are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to your particular issue or problem.
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More of your questions answered:
June 28 – 3 Things to Not Do In Your Custody Case
June 14 - Dads and Divorce: Keeping the Kids
May 24 - Are Custody Evaluations Worth It?
May 10 - A Better Way to “Consciously Uncouple” – Collaborative Divorce