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Author Topic: One more MOVE-AWAY question  (Read 1593 times)

Bolivar

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One more MOVE-AWAY question
« on: Jul 12, 2005, 08:37:21 AM »
 
GOAL: to have a shared parenting arrangement.

PROBLEM:  It appears that eX has moved 25 miles North to a different County.(Stark Co.)

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I have been renting near where eX/son lives; a  few months ago I bought a house in the same area.

Son is now 5 yrs old.

BACKGROUND:

Divorce final Nov 2002
State: OHIO    County: Tuscarawas County


eX wife= Custodial parent (Physical & Legal custody; also called residential parent)
eX wife= Lives in Bolivar (Tuscarawas Co.)
eX wife= Works part time in Canton (Stark Co.)

me= NON-Custodial parent
me= Lives in Bolivar (Tuscarawas Co.)
I have the old standard visitation:
   > Every other weekend
        > Every Tuesday from 3:00-6:00 pm
        > 4 weeks vacation

June 6, 2005 I was informed that Son would be attending Private School in Canton(Stark Co.) and not the local Kindergarten in Bolivar(Tuscarawas Co.).  I was not consulted in this matter.

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MOVE-AWAY CIRCUMSTANCES


** It appears that eX has moved 25 miles North to a different County.(Stark Co.)

Ex has continued to exchange son at local McDonalds.(Tuscarawas Co.)  Therefore visitation has not been disrupted.

There is a Custodial Parent Relocation form for Tuscarawas County. “Notice of Relocation “
http://www.co.tuscarawas.oh.us/ClerkofCourts/RelocationPacket.pdf

[EM]One attorney emailed me back stating:[/EM]
I do need to point out that the custodian usually picks the school unless there is language to the contrary in your orders. There is a statute about moving,  but it really only addresses the visitation issues.

And

“Where the relocation distance is small, there might not even be a material change in circumstance upon which a parent could move the court to modify an existing custody and visitation order. Since typically a material change of circumstance is required before a court will modify an existing custody or visitation order, a move across town ordinarily is an insufficient basis upon which the existing order would be changed. Although the relocation may make the visitation exchange more difficult, it may remain practical to comply with the existing order, so no change would be made.”



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It appears that:
1. eX can choose a school 25 miles away.
2. Court will do nothing about move away. (eX can move without consent)
3. Having a shared parenting arrangement is not possible at this time.
4. Son and Dad will NOT be able to share more time together.


[FONT COLOR=RED]
QUESTION:
** Thinking out side the box.  Is there anything that can be done to allow more Father and Son time?[/FONT]   

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** perhaps IMPORTANT INFORMATION**
eX and eX’s Attorney are,,, lets say social friends.  I am sure eX’s Attorney knows about eX’s move and has advised her on how to proceed based on the fact I bought a house in the neighborhood.

So apparently eX Attorney feels that it is better for eX to say [EM]“I didn’t know I had to file”[/EM] than it was for eX to file the proper paper work in a timely fashion.



socrateaser

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RE: One more MOVE-AWAY question
« Reply #1 on: Jul 12, 2005, 12:07:15 PM »
>[FONT COLOR=RED]
>QUESTION:
>** Thinking out side the box.  Is there anything that can be
>done to allow more Father and Son time?[/FONT]   

The facts show that mother has sole legal custody, thus she is entirely in control of where the child attends school. Your obligation begins and ends with paying court ordered support. Therefore, you have no claim for relief here. The facts also show that mother is continuing to permit your exercise of visitation according to the existing orders, and that your rights have not be impaired by the move, therefore you have no claim for relief here, either.

Mother has also failed to notify you of her move, per OH law, however you have not been negatively affected by this. A court might invoke the maxim, "di minimis non curat lex," i.e., the law does not concern itself with trifles, and dismiss your complaint of no notice. However, if you can show how you rights are actually impaired by the move then you could file a motion to address the issues, using the failure to give notice as grounds.

If you have already complained to mother's attorney re the failure to provide notice of the move, then that should be enough for the moment, unless you have an articulable claim, in which case, you should request relief from the court.

On the specific issue of gaining more time, I see nothing in the facts that suggests a theory on which you can do. If you could prove that the child has been denied close friendships or significant social/educational/athletic opportunities as a direct result of the move, then you could have an argument, that would go along with the mother's failure to notify you of her relocation.

Absent credible evidence of those sorts of impairments to the child, your best plan, in my opinion, is to make your son's being with you more fun than his being with his mom, because eventually, he will be old enough to voice a strong desire to live with you, and the court will then consider the child's wishes.

At the moment, however, I don't see a case for any substantial change in custody/visitation.

Bolivar

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What if??????
« Reply #2 on: Jul 12, 2005, 03:44:30 PM »
[em]How do you feel this approach would work?[/em]

Go back to court and submit a “Shared Parenting” plain.  At this point opposing counsel they would have to explain why eX moved and why she did NOT give proper notice.

From there I would argue that eX knows I have been working towards shared parenting and is being vindictive by sending son to kindergarten and moving son 25 miles to another county.

socrateaser

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RE: What if??????
« Reply #3 on: Jul 12, 2005, 04:12:30 PM »
>[em]How do you feel this approach would work?[/em]
>
>Go back to court and submit a “Shared Parenting” plain.  At
>this point opposing counsel they would have to explain why eX
>moved and why she did NOT give proper notice.
>
>From there I would argue that eX knows I have been working
>towards shared parenting and is being vindictive by sending
>son to kindergarten and moving son 25 miles to another
>county.
>

I don't know if your current custody orders contemplate increased parenting time for you as the child grows. If they do not, then there's no particular reason why the court would entertain any change in the current orders. You can certainly argue that the child is older now, and that you should be permitted to exercise more time, but it will all depend on the judge, because there's really no statute or case law to support your request. If the mother were actually impairing your exercise of current visitation by moving, then you would have a case. But, arguing that failure to give notice, and/or moving, in simpliciter (by itself), is harming your interests is pretty weak.

I just don't want you to waste your time -- of course, it's up to you.

Bolivar

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RE: What if #2 ??????
« Reply #4 on: Jul 20, 2005, 10:49:41 AM »
Ok so eX Moved 25 miles to a different county and did not tell me or submit  Move away forms.

NEW:

When eX bought her house she transferred it to a Revocable Trust.

No big deal,,, but wait.  eX’s divorce attorneys firm has done all of eX’s legal stuff in the past and I am sure did eX’s Revocable Trust.

Therefore eX divorce attorney knew about the move and the requirement for eX to file a “Custodial Parent Relocation” form.

Does the court care if eX new about the relocation form and did not file it?  What obligation does eX divorce attorney have to eX Filing?


socrateaser

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RE: What if #2 ??????
« Reply #5 on: Jul 20, 2005, 11:01:37 AM »
>Ok so eX Moved 25 miles to a different county and did not
>tell me or submit  Move away forms.
>
>NEW:
>
>When eX bought her house she transferred it to a Revocable
>Trust.
>
>No big deal,,, but wait.  eX’s divorce attorneys firm has done
>all of eX’s legal stuff in the past and I am sure did eX’s
>Revocable Trust.
>
>Therefore eX divorce attorney knew about the move and the
>requirement for eX to file a “Custodial Parent Relocation
>form.
>
>Does the court care if eX new about the relocation form and
>did not file it?  What obligation does eX divorce attorney
>have to eX Filing?

Lawyer has a professional duty to not advance a client's future unlawful actions/omissions. Lawyer must try to discourage prospective unlawful conduct, and if client refuses, then lawyer must withdraw from the case, or in some circumstances, inform the judge, personally that the client is committing perjury.

You will need to show that Lawyer knew or reasonably should have known that the revocable trust was created on property that his/her client intended to use as her principal residence, and that the lawyer new or reasonably should have known that the client intended to omit informing the court of the intended relocation.

Unless there's something in recent filed motion pleadings/declarations or a letter from the attorney, that shows attorney knew of all of the above prior to the time that his/her client relocated, you will be wasting your efforts. If you can prove it, however, you could conceivable get a contempt citation against the attorney, but more likely you would need to report the conduct to the state bar/agency that deals with professional conduct complaints against attorneys, and then the attorney would be disciplined. This would get you nothing but some vindication (no money, no change of custody, visitation, etc.).

It would also leave you with either an ex who needed to retain a new lawyer because the attorney is suspended from practice, or a very vindictive opposing counsel, who would now have a reason to try to burn your fingers at every opportunity.

This is just not a good set of choices for you. You need to let it go.

 

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