Relocation questions

[Mamacass]

I'm gonna try to keep the background as short as possible.  

We live in Virginia, and currently so does the BM.  At this time she has full custody and we have standard visistation rights.  

Outside of the courts, we had an agreement 5/04 for son to spend equal time with each parent (in 2 week increments) and for no child support to be paid by either party.  This continued until 9/05 when son started school.  To provide more stability, the agreement changed to Monday through Thursday nights and 1 weekend a month with mom, and the remaining weekends with me (starting Friday when school lets out and ending Monday mornings when dropping him off at school.)  As well as Son spends 2 months during summer with me, and we alternate holidays.  Of course on several occasions during the school year I kept son for entire weeks (whenever our schedule allowed), and also several of our weekends ran through Tuesday or Wednesday b/c his mom wasn't feeling well, or was busy.  

By the way, mom doesn't work, she is on disability (not sure if for back problems or her bi-polar).  Although the school in my district is much better, going to school with her meant he didn't have to attend daycare after school.  Even though I would have rather him go to school in my district with his friends and cousins, I tired of arguing and gave in to mother so that he could go to school in her district.  

BM has shown a pattern of instability in her relationships.  She has been married 3 times (including to me originally).  The most recent marriage lasted from 10/05-2/06 (this includes the month that they dated before marrying).  She also had a relationship between her 1st and 2nd marriage with a man who she had a child with and gave up for adoption.  

On the other hand, my wife and I have been together for over 5 years, and we have 4 y/o son and another child on the way.  

Several weeks ago, BM informed me that she is planning to move to NC (3 1/2 hours away) and wanted to discuss taking son with her.  We have had a few discussions about the move since then, but did agree that it wouldn't be mentioned to Son until a decision had been finalized between us.  She broke this agreement a few nights ago, and called at bedtime, and informed son that they were going to move to NC in a few weeks.  He was pretty upset.  We have seen had some more discussion w/ BM and she has said that she is definitely moving and is 100% set on Son going with her.  She says this is going to be a fresh start for her, and an opportunity for Son to attend a better school.

We believe the whole basis of this move is her current boyfriend.  (They started dating around 5/06 and he is moving back to his hometown since he is getting out of the military.)  She doesn't have any other family there that we know of, but has said she has a bunch of friends down there.  Honestly, I don't think there's anyone down there she's known for more than a few months.  

We have compared the elementery school in the district she is moving to and in our district and the testing scores are comparable.  Also all of Son's extended family (on BM, BF and SM's side) live within 20 minutes of my home.  He is very close to all of his extended family.  

We have told BM that we don't agree witht he move, but if it is such a great opportunity for her we are happy for her, but feel that son should stay in Virgina where he has always lived.  She has told us that a child's place is with thier mother, and since we have 2 other children it's only fair that we let her have the Son.  We seem to be at a point where there will be no compromising and we will have to involve the courts.

I want to keep son in this area, and want to file for custody.  

1.  How can I keep her from moving to NC with son when he goes back to  her in a few weeks?

2.  Should I enroll him in school in my district at this time?

3.  How do I file for custody?

3a.  What do I list as reason for filing for custody- her impending move, her instablity, her mental condition?  I'm not sure if its better to list a bunch of reasons, or just the main few.

4.  She has not provided 30 day advanced written notice of her new address as law requires, is this important or do the courts really care?

5.  What are the things we need to prove to the court to keep son from being relocated?

6.  If we get the order to keep son here, and she moves anyways, does this mean that we get custody by default?  

7. Is relocation and custody 2 separate trials?  Or will they be heard together?

thanks so much!

[socrateaser]

>1.  How can I keep her from moving to NC with son when he goes
>back to  her in a few weeks?

File a petition/motion for a custody determination on grounds that the mothers decision to move is substantially not in the child's best interests, and then prove your case. Along with your request, also request a temporary restraining order to prevent the move until the court decides the matter finally.

>
>2.  Should I enroll him in school in my district at this
>time?

See above.

>
>3.  How do I file for custody?

I don't practice VA family law, so I can't tell you the exact process. But, the fact that you're asking the question, is a strong indication that you will need an attorney to represent you, and that if you try to do it without one, you will screw up the process sufficiently to blow any chance of success.

>
>3a.  What do I list as reason for filing for custody- her
>impending move, her instablity, her mental condition?  I'm not
>sure if its better to list a bunch of reasons, or just the
>main few.

I can't answer this question without first reading the EXACT text of your existing final custody order. And, if no order was every put in place and you are just now attempting to create a legal custody relationship between yourself and the child, that actually would be a good thing, assuming that you can convincingly prove that you have been routinely and regularly exercising custodial rights with the child.

If not, then you will pretty much have no case to prevent a move.

If there is a current order and the other parent has been awarded sole custody and you visitation, then you have a very high burden of proof (clear and convincing evidence means that the court must find fairly overwhelming evidence against the child moving and you need to be able to show the court such evidence before the court will order a more comprehensive evaluation of the child's circumstances. This is an intentional legal catch-22 that spoils most non-custodial parents' chances at making substantial changes in prior custody orders, and it exists because courts generally don't want to mess with the status quo surrounding a child.

What I'm saying is that preventing a move away where the moving parent has sole custody is VERY VERY difficult. You need some pretty damaging evidence that the custodial parent's actions will cause the child severe distress, and if you don't have such evidence, you will be slamming your head against a wall trying to make any progress.

>4.  She has not provided 30 day advanced written notice of her
>new address as law requires, is this important or do the
>courts really care?

The courts will interpret and enforce the law, but only if you properly assert your rights. Just because the law requires 30 days notice, doesn't mean that you have the right to assert the law in your present circumstances. I don't know VA law in this area, so I can't say one way or the other.

>
>5.  What are the things we need to prove to the court to keep
>son from being relocated?

Basically, that the mother's actions will clearly and convincingly operate against the child's best interests. This may seem vague, because it is, but that's what you need to prove.

A good example of something that would work is proof that the custodial parent is moving in order to engage in some sort of criminal activity or that the child's relocation would deprive the child of some extremely important service, such as where a child is autistic and needs special education and the parent is moving from an area where such special accomodations are available, to an area where they are not.

An argument that a new public school isn't as good as the old public school is not gonna cut it -- no way, no how.

>
>6.  If we get the order to keep son here, and she moves
>anyways, does this mean that we get custody by default?  

Nope. But, it would be a pretty good case at that point, assuming that you acted quickly to have the CP arrested on a contempt charge and the child returned to the jurisdiction.

>
>7. Is relocation and custody 2 separate trials?  Or will they
>be heard together?

You can apply for relief on both issues simultaneously. The court would consider the relocation issue first, and based on that determination, a change in custody might be moot, if you lost the relocation action.

You need an attorney. Don't screw around thinking you can litigate this on your own, because you can't. If you do, you will lose and you can take that to the bank.

[kaylene99]

Hi there,

Not a legal expert by any means but I thought I'd share my 2 cents since we were involved in a relocation case some years ago.  Ex wife wanted to relocate minor kids to ANOTHER COUNTRY and we won against it.  State is FL which has 6 factors to consider in a relocation case.  We had a lawyer but did most of the research ourselves, too.   We simply covered those 6 factors which the ex wife miserably failed to do.

I don't know VA statutes at all but here's something I found that you might find interesting and helpful:

http://www.maddoxlawoffice.com/CM/WhatsNew/relocation_custody_cases.pdf

You might want to check this firm out if you still don't have a lawyer.  It looks like they specialized in Family Law.  Maybe they offer free consultation or something.

In our case, husband had to file for emergency motion to suspend return of minor children to ex wife until hearing to prohibit their relocation is done.  This happened while the minor children were with us for the summer.  Ex wife was outright vocal (& sent an email, too) that she was leaving the country with the kids as soon as they get back from their summer with us.  Needless to say,  husband's emergency motion was granted.  Hearing happened not long after which turned out in our favor.  

Good luck!

[socrateaser]

That is an extremely well written article. I am impelled to make an editorial -- something that I try not to do here, because I like to keep things objective. But, I can't help myself, because this article serves to show precisely how utterly amoral (not immoral) the American system of family law is.

Based on my reading of the article, the practical reality of VA law, is that if a custodial parent can manage to sneak out of town with the children, and by the time that the case reaches the court, the children are reasonably well adapted to the new environment, then the VA courts will rubber stamp the move as being in the child(ren)'s best interests, and the custodial parent's clear action to deprive the non-custodial parent of a relationship with the child(ren) wll be ignored by the court.

In fact, the only way to prevent this outcome, as a practical matter, is for the non-custodial parent to be able to predict in advance, a coming moveaway and get into court for a restraining order before it happens.

Calling such a legal policy fair or just to the children is a monsterous convolution of the words "fair" and "just." The VA judges who have crafted this policy deserve to all be non-custodial parents subjected to this marvelous legal rationale that they have created.

Only then could they possibly understand the level of evil to which they have all sunk (or, is it "sank?").

What an utter crock of !@#$.