Joint custody - ex moving and wants the children

[johnCA]

Hi,
my case is probably common, but I would appreciate your feedback, advice and experience if you faced such a situation or simply if you have an opinion. Thank you.

I've been divorced for 3 years with joint physical custody of my 2 children (6 1/2 and 8 now). I am French, decided to remain in CA after the divorce for the best interest of the children and hoped that my ex also wanted the best for them, but she announced me few weeks ago that she applied for a position 100 miles away, got the job and accepted it. Part of her contract is to relocated before end of July and she simply told me 'I am taking the children with me', without any custody discussion prior her decision.

So obviously, the children will have to have a primary custodian and the decision has to happen soon.

My questions (just listing a few :)

- should I initiate the court process to change the custody order in place or wait for her?
- any chance that I, the Dad, can get primary custody vs the Mom in CA?
- would her decision to go against 'the best for the kids' by moving and forcing a custody change be taken into account?

I believe that my ex can not stand that I am rebuilding my life without her. I met a great woman I love, she is getting attached to the children and so do the children, and I think she is feeling threatenend by this. As a revenge maybe, she trying to cut me from my children...
Note that initially, she's the one who broke the mariage.

- have have concerns about her 'stability' and taking some irrational decisions, but I'd like to keep a dispute in court as clean as possible. Would you recommend me to request some type of personality check and investigation day one, or wait and see if I need that to win?

Ay feedback is greatly appreciated.

Thank you

[joni]

I see that you have no other choice than to 1) gain physical custody or 2) be happy with EOW and commuting 2 hours to pick up/drop off your kids or 3) continue to move to be near your kids.

You have a very, very precious commodity in your joint physical custody.  Do not give that up.  I don't think it's going to be easy for her to move unless you have a job that would keep you away from your children while they are at home.

Of course this is about you moving on.

You need to find yourself an atty who's certified in family law.  Try this site, //www.aaml.org/directory.htm

Keep in mind that this is just the beginning of the moveaways.  Each time moving further and further away.  My husband had his Ex in Chicago, let her move to Detroit so she could be with her parents and now they're in upper state New York.  All this in just 5 years.

Read this:

http://www.divorcenet.com/states/california/ca_art09

[CustodyIQ]

Hi,

I live in California, have joint custody, and beat a move-away attempt last year.

The court will rule in a way that's in the best interest of the children.  Your ex won't be viewed critically for her decision to move away, but you'll have to show the court why the kids should remain with you.

To give you better guidance, some questions I have for you are

1.  What's your current parenting schedule across a 2 week period?  (i.e., paint me the day-by-day picture).

2.  How much money do you have to spend to fight this?  (e.g., $1,000, $10,000, or pocket change?)

3.  What's the worst "stability" problem she's shown in the past year?

4.  How are the kids doing in their current school?

5.  When are you planning to move in with the new girlfriend, or get married.... if either?

6.  Does the city that mom wants also have job opportunities for you or have any interests for you in residing there?

7.  Are there any particular interests or hobbies for the kids that their current city offers them which the new city may not?

8.  Any aunts/uncles/grandparents in either city?

[johnCA]

Thank you for your answers. Here is more information.

1.   What's your current parenting schedule across a 2 week period? (i.e., paint me the day-by-day picture).

The court order was as follow :
At Dad:   Week1 Mo Tu Fri Sat Sun   Week2  Wed Th
At Mom   Week1 Wed Th          Week2  Mo Tu Fri Sat Sun

I accepted to accommodate her needs as she changed job in September last year and switched to an entire week each.

2. How much money do you have to spend to fight this? (e.g., $1,000, $10,000, or pocket change?)

Few $1,000s

3. What's the worst "stability" problem she's shown in the past year?

She had 3 different jobs. She changed in September last year and changes again. She is the type of person who is never satisfied with what she has and never manages to enjoy it.

Before the divorce, she started to have these, what I would call 'self destructive' behaviors:
Smoking, taking pills to loose weight (it became an obsession), cheating on me to the point I had to divorce, ... and to some extend, I associate her move to this type as she is just going against the best for her children.

4. How are the kids doing in their current school?

Just great. I am very pleased with their school year.

5. When are you planning to move in with the new girlfriend, or get married.... if either?

She will move in sometime this summer, unless my attorney tells me it is not a good thing and a 'live in' situation may not be perceived well for the custody decision.

6. Does the city that mom wants also have job opportunities for you or have any interests for you in residing there?

I could potentially move there and find a job, but my ex is a control maniac and she do this to prove herself that she can still 'win' against me and force me to follow her if I want to see my children. I'd rather win and maybe move closer to her if I have an opportunity to do so, rather than being forced to do so.

7. Are there any particular interests or hobbies for the kids that their current city offers them which the new city may not?

I don't think so.

8. Any aunts/uncles/grandparents in either city?

no

[CustodyIQ]

So, it sounds like you have something close to 50/50, if not exactly 50/50.

Based on all your answers, if you took this to court, it could swing either way.  This is my opinion, of course.  I'm not an attorney, but I've been engaged in custody conflict for 4+ years and have learned quite a bit.

In April 2004, there was an important move-away case called LaMusga.  Previously, caselaw was based upon Burgess, and the interpretation was that a custodial parent had the presumed right to relocate the kids, barring any major detriment to the children that the noncustodial parent could prove.

With LaMusga, the supreme court clarified the interpretation of Burgess.  In LaMusga, the court specified that a family law judge must ALWAYS make rulings based upon best interest of the child when it comes to move-aways.

LaMusga came out one week before my custody evaluator issued his report.  My ex was attempting to move 400 miles away.  The custody evaluator specified that if "best interest" is the determinant in the court's decision to let the child move or not, then the evaluator must strongly recommend AGAINST the child moving, as it would be very detrimental to her welfare in that she would all but lose her bond with the father and stepmother (i.e., to whom the child was deeply bonded).  The evaluator believed that if mother moved with the child, the mother would likely frustrate access between child and father across 400 miles.

In my case, at trial, mother announced she still wanted to move.  Judge looked at both attorneys, said that due to mother's decision, he's in a very tough spot and is being asked to split the child in half.  He said that neither parent will be happy with his ruling, so he encouraged us to settle.  He then took a recess, and both attorneys got the message that both parents would lose if mother moved.  She decided not to move.

In your case, it sounds like you're going in to this with more custodial time than I had at the time of my trial.

Here's what I think your attorney would argue, based upon LaMusga...

1.  You have stability in income.  Hopefully, you've had the same job for years to prove it.

2.  Kids are doing great in school.  It would be best not to disrupt that.

3.  Kids have friends locally.  It would be best not to disrupt that.

4.  You've lived in your home for X years.  Kids are very familiar with it, and it would serve their interests to place them primarily in a familiar home if/when mother moves.

5.  There is no guarantee that mother's life will stabilize with this move.  Point out the frequent job switches.  None of the other "self-destructive" behaviors you outlined are relevant, unless she's taking meth or another illicit drug for weight-loss.

6.  If girlfriend were already living with you, and if you were making wedding plans within a few months, I think it would benefit you.  I think your whole argument is, "Judge, look how stable my home is and how little change these kids will have to endure."  However, if you move your chickie into the home during the middle of all this, your home is arguably just as change-filled as the mother's.  At this point, I'd suggest waiting until you're nearly married or after the wedding until your GF moves in.

7.  You have friends, health professionals, and neighbors who are all a support system to you and the kids.  The new city offers no family, no long-established friends, and no health professionals who know the kids well (and vice versa).

8.  Perhaps this is true also... your current city has an airport that offers direct flights to/from both sides of the family.  The new city's airport does not offer direct flights, making it a bit tougher for both parents to keep the kids more involved with their extended families.

See... you want to lay out ALL the reasons why staying local is better for the kids (i.e., it's not about convenience to either parent).

I think you may spend a few thousand to fight this.  If it goes to an evaluation, which may benefit you, it could be a few thousand more.

It's going to boil down to a couple of factors:  who has the better attorney, and which side of the coin will the judge see when he flips it.

But, if I were in your shoes, I'd feel like it's truly in the kids' best interest to stay local.  I think you have a slightly better chance at prevailing, but it's really a wildcard here.  But worth going for it.

You would petition the court to modify the parenting plan (not change custody), based upon mother's stated intent to move away.  If you don't request a custody change, you don't have to worry about showing a "significant change of circumstance".  So, you'll keep it joint custody, but simply with a new schedule that you'll propose.

Good luck.

[johnCA]

Thank you very much for all these very valuable points. I feel ready to fight to move.

[Troubledmom]

LaMusga Ruling states:

"Among the factors that the court ordinarily should consider when deciding whether to modify a custody order in light of the custodial parent's proposal to change the residence of the child are the following:

the children's interest in stability and continuity in the custodial arrangement;
the distance of the move;
the age of the children;
the children's relationship with both parents;
the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests;
the wishes of the children if they are mature enough for such an inquiry to be appropriate;
the reasons for the proposed move; and
the extent to which the parents currently are sharing custody."