Relocation

[Mom4Joint]

Awhile back, I posted to you about a custody/visitation issue.  The short of it was that bm was constantly denying my dh visits, but we had such a vague visitation schedule, that there was nothing we could do about it.  Your advice was to go back to court and get a standard visitation schedule FIRST before trying anything like requesting joint custody.  So my dh did.  

My dh was granted standard visitation, but was not granted joint legal custody.  The judge stated that as long as bm and my dh did not get along, there would be no joint legal custody.  Naturally, he was upset.  His daughter has been diagnosed with ADHD, but bm is not doing anything about it, and there is nothing he can do about it since he does not have joint legal custody.

The new visitation schedule was effective on July 21, 2005.  Our first weekend with his daughter was last weekend.  During that weekend, dh's daughter (who will be five this coming month) advised him that she and mommy were moving next weekend.  At this time, dh had not been notified of any such move.  Furthermore, according to his daughter, they were moving to Tulsa, which is a little over 200 miles away from where we live.  

Being curious, my dh contacted bm to ask her if she was moving, since daughter had mentioned it.  BM seemed pretty caught off guard, and all she would tell him at the time was that she was thinking about it.  In a later conversation, bm admitted that she had gotten a job there and is looking for a place to live.  She would not give my dh an idea of when she was moving.

Now, my dh and I believe that bm had originally intended to move first and THEN advise us of the move.  BM has already stated that when she moves, my dh will be responsible for picking his daughter up.  As far as we know, this is not true.  Our lawyer advised us that most likely, she will be required to provide the transportation, and dh told her that, but she says she has my dh on tape refusing to provide the transportation and that she will use it in court to show that he is being uncooperative.  

This is simply unfair.  For one thing, we do not believe that bm HAS to move to Tulsa.  She claims that she was fired from her job, and so she had to get a new job.  But we live in Oklahoma City, and there are as many as, if not more job opportunities here for her to take.  We really believe it is not a coincidence that she decided to do this right after our court hearing in which my dh was granted visitation which she can no longer control or deny.

Second of all, my dh and I are both full time students.  We have two older cars that we drive which are fine for around town, but each have almost 200K miles on them and would not be up for these long distance trips EOW.  So, even if child support was offset to cover the costs, it would not be feasible.

Our current visitation schedule is as follows:

http://www.dougloudenback.com/vis/oklahoma.htm

The Oklahoma statute regarding relocation is here:

http://www.oscn.net/applications/oscn/deliverdocument.asp?citeID=388969

My questions are as follows:

1.  Should we seek to stop the move or allow the move but demand that she provide transportation?

2.  If dh agrees to her move, he will lose one overnight EOW, because of the traveling, he could not return her to daycare that far away on Monday morning, nor could bm pick her up Monday morning before she goes to work.  She would have to pick her up Sunday night.  How much visitation should we ask the courts for in order to make up for the loss of these nights?  Should we ask for all long weekends AND all summer?

[socrateaser]

The OK statute is more purposeful than most I have read and it provides authority to the court to change custodial homes for failure to timely notify. However, as a practical matter the court will almost never do this. So, I suggest that you file a motion for a temporary restraining order against the other parent to not relocate the child until the court can make appropriate orders regarding the child's best interests, and explain to the court what's up and why you think you should be given more time or transport expenses.

I would ask for as much as I thought would reasonably serve the child's best interests, and not concern myself with the mother's possible bad intentions. This will make you look good in the court's eyes -- not a hostile ex seeking revenge, merely a loving parent who wants to ensure the child's welfare.

You never get what you ask for in court, so you should always ask for more and take less. Just don't ask for so much that you appear to be so hostile that the court may think that you are one of the reasons why the other parent "should" move.

[Mom4Joint]

Thanks for the reply.  For clarification, you think we should do something before she moves?  I've heard other people say this, but our lawyer seems to think we can't do anything until she actually moves.  Is this right?

[socrateaser]

>Thanks for the reply.  For clarification, you think we should
>do something before she moves?  I've heard other people say
>this, but our lawyer seems to think we can't do anything until
>she actually moves.  Is this right?

I do think you should do something now. And, your attorney is um...er...uuuh...possibly incorrect. If you want to obtain relief based upon the statute concerning relocation, then I agree with your attorney that you must wait. However, there is nothing that says you cannot request a temporary restraining order on the equitable ground that you and the child will suffer irreparable harm if the parent is permitted to relocate without providing written notice, and that she has stated her intent to relocate to you orally, therefore you should be entitled to restrain her from moving the child until such time as the court can hear both sides of the issue.

If your attorney knows from experience that your judge is likely to order the child's return or substantially modify custody in your favor as the result of the parent's failure to notify you of the move, then I'd go with his/her advice. But, if not, then you just ask the attorney, how many times in his/her personal experience has a court actually forced a custodial parent to return the child to the county with jurisdiction after a relocation is an accomplished fact?

I'll wager that the answer will be "Never." That's when you say, "Then I want you to file NOW."

[Mom4Joint]

Our lawyer already told us that there was no way we could stop the move, but he said we could require her to provide all of the transportation and have visitation modified accordingly, but for some weird reason he says we have to wait until she actually moves to do this (I don't get that either.)  

In my opinion, our lawyer is not so great (he really doesn't have a passion for custody/visitation cases and he kept trying to get us to settle out of court instead of seeing the judge.)  It's just right now, we can't afford to retain a whole new lawyer just for something like this.  

We will, however, retain a new lawyer, if and when we decide to seek a change in custody or request legal joint custody or face more complicated issues regarding custody.  I guess sometimes you have to learn through trial and error about getting a good attorney.

How difficult would it be to do something like this pro se?

[socrateaser]

>How difficult would it be to do something like this pro se?

It all depends on your knowledge of legal process and whether you freeze up in a public dialog like a courtroom. However, in order to file pro se, you will first have to discharge your attorney so he can move to withdraw from the case.

After that, the attorney probably won't want to come back if you need him/her.

[Mom4Joint]

We received a certified letter from bm today.  Here is what it states:

Dear Mr. XXX,

     I have obtained a job in Tulsa, and we will be relocating there as soon as possible to begin my new job.  This move will occur before the end of August 2005.  I do not currently have the address we will be moving to, nor the exact date of the move, but I will get that to you as soon as I am able to.  My cell phone number will remain the same for now, and I will also notify you of my new home phone number as soon as that is set up.

I propose that the visitation order as it is written not be altered except for:

Your pick up of daughter will occur on Firday evening, and she is to return home on Sunday evening.

That transportation be provided in one of the following ways: a.) You will pick up daughter from my home in Tulsa on Friday at 7 p.m. and I will come to pick daughter up on Sundays from your home at 6 p.m.
B.) We meet in Stroud to exchange on both Friday evening at 7 p.m. and Sunday at 7 p.m.

I understand that the move is not the most convenient of circumstances, but I must go where my job is in order to provide for our daughter and I am more than willing to make sure that she does get her time with you.  I appreciate your attention to this matter, and will be contacting you with the specific address and phone number of our new home as soon as that information is available.  If you have any further questions, please feel free to contact me.

XXXXX

This letter was not dated.  Also, she is requesting that the visitation schedule remain the same except that we lose one overnight every other week.  

My questions are:

1.  How would you approach this?  Would you reply back to her or simply take it to the lawyer and get the restraining order?

2.  Do we have a valid reason to stop the move altogether or should we just focus on transportation and getting the summers and long weekends?

3.  We have done a search on monster.com for jobs available in this city.  However, we only know bm's general area of expertise (insurance) and that she has lots of clerical experience.  She claims that she will be making so much money that she HAS to move.  She has no college degree.  Should we present our lawyer with our list of findings for general clerical and insurance jobs showing that there are plenty of employment opportunities here?

[socrateaser]

>My questions are:
>
>1.  How would you approach this?  Would you reply back to her
>or simply take it to the lawyer and get the restraining
>order?

All of my previous advice remains the same.

>
>2.  Do we have a valid reason to stop the move altogether or
>should we just focus on transportation and getting the summers
>and long weekends?

I can't answer you. If you can show the court, clearly and convincingly, that the child will suffer a detriment by moving vs. staying then you win -- otherwise, you lose. You haven't identified, other than yourselves) what friends, family, activities, schooling, etc., exist locally that will be impaired by the move. Perhaps there is nothing to the case other than the child's relationship with you. This is important, but not important enough, by itself, because the other parent's relationship is equally important and the two relationships cancel each other out.
>
>3.  We have done a search on monster.com for jobs available in
>this city.  However, we only know bm's general area of
>expertise (insurance) and that she has lots of clerical
>experience.  She claims that she will be making so much money
>that she HAS to move.  She has no college degree.  Should we
>present our lawyer with our list of findings for general
>clerical and insurance jobs showing that there are plenty of
>employment opportunities here?

This is irrelevant. Understand that it's not about the best interests of the parents, it's about the best interests of the child. The parents' rights cancel each other out, and what's left is the state's interest in the child's welfare, and NOTHING ELSE!

So, like I said, CLEAR and CONVINCING evidence of how the CHILD will suffer as a consequence of the move. If you produce sufficient evidence show this, then the court will be forced to reverse custody -- otherwise, the court will allow the move and adjust transportation issues to balance the equities of the parties (even out the time and money issuses). Only you know all of the facts that impact on the issue before the court, so it's up to you to determine whether or not you can make a clear and convincing case.

The phrase, "clear and convincing" has an express legal meaning, I'm not using it just cause it sounds good. It means that the evidence required to reverse custody most be substantially more than merely enough to tip the scales minutely in your favor, which would be the standard in an ordinary civil matter for, say breach of contract, or an automobile accident recovery. You must tip the scales heavily in your favor, although not as heavily as would be necessary for a prosecutor to obtain a conviction in a criminal action (beyond all reasonable doubt).

So, think about what you've got and ask yourself if you have a boatload of evidence that the child's life will substantially deteriorate by moving vs. staying. If you do this, you'll be able to answer your own question as to what to do.

[Mom4Joint]

Thanks so much for the clarification.  Here is the only item that I can think of that would affect the best interests of the child.  I'm not sure if it is enough to argue in court...

1.  BM currently has sole legal custody.  DH asked for joint legal custody, but judge refused on the basis that bm and dh do not get along.  Daughter has been officially diagnosed with ADHD.  One of the reasons that bm claims that she was explicitly against dh having more time with daughter is because she refused doctors recommendations to put daughter on medication, and therefore she has to keep daughter on a very strict, consistent schedule.

In fact, bm told dh that he needs to have daughter at daycare very early in the morning because she is very used to the schedule and is familiar with the surroundings and needs to be there.  When she moves, daughter will be in a completely new environment.  None of her family lives in Tulsa.  They all live here.  She has been going to the same daycare for 4 years, and bm has always insisted that daughter MUST have this stability, due to ADHD.  The only person daughter will know in Tulsa is her mother.

We have witnessed ourselves daughter's inability to cope with new situations.  She has a hard time adjusting when things change.  We have finally gotten daughter used to our environment and have a specific visitation schedule that daughter counts on, and suddenly bm wants to change everything because of her new job.    

How do you think the courts might view this?  Is it a valid concern?

[socrateaser]

>1.  BM currently has sole legal custody.  DH asked for joint
>legal custody, but judge refused on the basis that bm and dh
>do not get along.  Daughter has been officially diagnosed with
>ADHD.  One of the reasons that bm claims that she was
>explicitly against dh having more time with daughter is
>because she refused doctors recommendations to put daughter on
>medication, and therefore she has to keep daughter on a very
>strict, consistent schedule.

If you can prove that BM used daughter's ADHD and her inability to cope with changed circumstances, as a rationale for depriving you of more parenting time, via a past court declaration or testimony, or some credible written statement/letter, then that would be relevant evidence that the move is not in the child's best interests.

If it's just your word against BM's then you're wasting your time on this issue.

>
>In fact, bm told dh that he needs to have daughter at daycare
>very early in the morning because she is very used to the
>schedule and is familiar with the surroundings and needs to be
>there.  

Same issue, but you need proof, not just your words against BM's.

When she moves, daughter will be in a completely new
>environment.  None of her family lives in Tulsa.  They all
>live here.  She has been going to the same daycare for 4
>years, and bm has always insisted that daughter MUST have this
>stability, due to ADHD.  The only person daughter will know in
>Tulsa is her mother.

This is a good argument for not relocating the child, so bring it up.

>We have witnessed ourselves daughter's inability to cope with
>new situations.  She has a hard time adjusting when things
>change.  We have finally gotten daughter used to our
>environment and have a specific visitation schedule that
>daughter counts on, and suddenly bm wants to change everything
>because of her new job.    

Judge really won't care what you've witnessed yourself. Judge wants a report and testimony from a qualified expert/therapist/physician. If you have that sort of evidence, then you have a case. If you don't, then you could certainly ask for the court to order an evaluation of the child, but that will be spendy, and you need SOME other objective evidence to support your request.