Will he let me move? This was the main question that was asked the other night while at dinner with some divorced girlfriends and it got me thinking. If you are the primary parent, even if you share custody, in most states you do not have the right to relocate to another city, but the parent that is not listed as the primary parent can move anywhere they want.
I have this one client, let's call her Ms. Y. Ms. Y is the primary custodian for her twins, who are 7 years old. Mr. Y, her ex-husband, has standard possession, which is every other weekend. He does not take every other weekend though. Sometimes he leaves town and the children stay with his parents. Why is this important? Although he takes his children on his weekend, he does not always keep them, so why take them if he isn't going to be keeping them. Don't worry, this fact makes sense as you read the rest of the article.
It has come up in several sessions with her that she wants to move and how to approach it with Mr. Y. Because of the laws in most states, unless you have an agreement from the other parent, chances are you will not be able to move, not for a better paying job, a sick parent or a new spouse. You can petition the court, but it is a rare occasion when a judge will actually grant you the right to move, and most attorneys will dissuade their clients from even trying to ask for it.
If your parenting plan is in place, you must prove that living where you live is detrimental to the children's well being. Note you don't have to prove it is in the best interest of the child to move to a new place, but that it is detrimental for the child to remain where they are. Of course, you can just up and move, as some primary parents do, regardless of what the decree or judge says, but is that really the best solution? Not even remotely. It is as hard to prove that it is better for a child to be moved away from one parent as it is to prove parental alienation.
At one point, Mr. Y said he was not opposed to discussing it, and might actually move as well, but now he is angry at her, because she has found someone she wants to spend her life with. He will not only not discuss it, he won't even consider it, which leaves her, as the primary parent stuck in a city that Mr. Y chose due to his job.
Why is it that Mr. Y can move wherever he wants and Ms. Y has to ASK if she can go? Because she is the primary parent. Yes, she can leave the children with him to be raised by their grandparents, while he is off working long hours and gallivanting around with his girlfriend, but he could also fly the kids to where he lives or he could go and visit his children where they would now live. Conversely, she could pay for the children to fly to visit their father or for the father to visit them.
Would the courts allow a move if the primary parent offers to pay the other parent to visit? Most likely no, because it still does not show that the children are better off living away from the parent that is not listed as primary. Let's turn the tables for a moment, if the primary parent was the father and he got a better paying job in another city would the courts allow him to move? I don't know the answer to that question, but my guess is based on years of backwards thinking of the man being the breadwinner, it would be far easier for him to convince the courts than for the mother.
What would be fair? The parent that is not listed as the primary parent can move wherever they want whenever they want. The parent listed as primary cannot do the same. What if the laws said that as the non primary parent you can't move because if you do, you lose all rights to your children? As more and more courts are moving towards equal time and equal parenting rights, doesn't it seem fair that either both parties move or no parties move?
I don't have the answers to this question, but it is just one more aspect to the myriad of aspects that affect not only the children of divorce, but the parents of divorce. What is your take on this subject?
Follow Lee Block on Twitter: www.twitter.com/LeeBrochstein