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Beverly Willett

Beverly Willett

Posted: February 8, 2011 11:50 AM

I'm tired of the "wintry mix." Here in New York snowfall in January broke a record. My heating bills set a record, too, and the winter's far from over.

Long about this time every year I get the urge to head south, or west, for good. I'm aware that last month every state except Florida had snow on the ground, though it's not usually that way. Still, fantasizing about moving is about as far as I'll get-- divorce pretty much prevents it.

My daydreams about running away began after my ex-husband left. Not that I really wanted to pull up stakes from where I'd set them down 20 years before or uproot my children's lives even further. (Just like I never wanted a divorce.) But getting smacked in the face by a wrongful lawsuit at mid-life made Jon-Kabat Zinn look like the enemy. At least in the beginning.

"I've seen judges prohibit custodial parents from moving more than a few blocks," my attorney Saul Edelstein said when I inquired about my options.

"But I have no family here to help me," I said. "And it's expensive."

"Too bad," Saul said. In other words, as the well-known Brooklyn sign says when you're about to exit the borough: Fuhgeddaboudit.

Though I was still trying to save my marriage, resentment set my imagination spinning. Conjuring up places to move I never even had an inclination to visit, especially after finding out the law provided no countervailing compensation for the restrictions on my constitutional right to travel.

"Years ago, I left Manhattan and a great group of friends to move upstate with my husband, only to have him leave me for another woman," Erica Manfred told me. "Now I'm stuck in the boonies, much older and alone, because we co-parent my daughter."

Of course, in certain circumstances courts do permit custodial parents to relocate. But getting the green light can be complicated. Laws vary from state to state, from balancing tests to the "best interests of the child" standards; some states require proof of good faith. Suffice it to say unless your ex and non-custodial spouse blesses your relocation plan, even if it's only to the adjoining school district, you'll likely find yourself in a complex, costly legal mess by petitioning to head out of Dodge.

Proof will be required on a whole host of matters such as your relocation plan, reasons for it and proposal for how your child will maintain contact with the non-custodial parent; your child's relationship with parents, siblings and grandparents, special needs, and the impact of relocation, including quality of life and effect on education and social relationships; the financial impacts, etc. Before it's all over there may be psych evaluations of the entire family as well as appointment of a law guardian to interview your child. Older children might have a say, and that can engender an entirely different sort of stress on the home front. (And who can blame them - as a rule, children don't want their parents divorcing in the first place!) The move may be expensive, too, along with the physical and emotional strain of readjusting.

"The bottom line is if you choose divorce, or have it chosen for you, you ultimately put the courts in charge of everything related to your kids until they are grown - including where you live and by extension, where you'll work and where your new spouse may work," says matrimonial attorney John Crouch.

Indeed, the courts--or even your ex--may force your hand.

"Courts can order that child custody change to the other parent if the custodial parent moves," says Crouch.

"When I was in the middle of divorce, my lawyer asked the court if my four kids and I could move to Houston where I have lots of family and the cost of living was much lower," Debby from Chicago told me. "My ex said of course I could move and come back whenever I wanted to visit my children. Needless to say, I remained in Chicago, where we had no family other than each other. Ten months later my ex left the state to avoid paying child support."

Awhile ago my own doctor said divorce had caused such stress that I should consider a long sabbatical.

"But my daughter's a teen, and she'd miss her dad," I pleaded. No matter that he and I had been through the litigation mill; he was her father. I understood her needs, even though I had my own oxygen mask to think about.

Only my doctor had something else in mind. "You're misunderstanding me," he said. "You should go alone." Talk about a sucker-punch. He's a brilliant, caring physician, but I ignored his advice for the time being and stayed put.

Unless the parties agree otherwise, however, the law generally imposes no impediments on the constitutional right to travel of non-custodial parents, even if they're the ones who do the leaving. They don't need a good reason to move, just like under no-fault divorce they don't really need a good reason to leave the marriage or family either. (Of course, custodial parents don't really need a good reason either.) If a better employment opportunity comes knocking, or an out-of-town romance presents itself, or pure whimsy strikes, they answer to no one but themselves.

Of course, not all non-custodial parents want to flee, even the left ones.

Charlie, a once full-time stay-at-home dad, who asked me not to use his real name because he's fearful of repercussions, told me that he, too, was the victim of a unilateral divorce. As a result, his parenting time dwindled to half. And, now after years of not working outside the home, he's forced to re-enter the job market during one of the worst unemployment periods in recent history. He hasn't been able to find work nearby, and doesn't want to move because his parenting time would be slashed even further. But he may have no choice.

Sadly, it's the kids who invariably get caught in the middle. There are few studies of the effects of relocation on children of divorce, but the data that exists along with research about the effects of relocation on children generally suggests that the picture is not pretty. Moreover, the social science research shows that in the majority of cases the best interests of children are better served if parents remain together in the first place. Indeed, why not have a "best interests of the children" standard where it counts most? Unfortunately, our divorce laws and practices do nothing to educate parents about the harmful effects of divorce on children or to promote reconciliation. (Of course, divorce may be better for children in certain cases such as those riddled with abuse.)

February 7-14 is National Marriage Week. So why not celebrate this year by tossing that divorce complaint where it belongs? In the garbage.

 

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