QUESTION:
My ex-wife tonight, in a fit of anger, told me that she is going to move to another state with our kids (her current boyfriend lives there).
I’m not sure how serious she is, but on the chance it does happen, how does that affect custody and parent time?
We have joint custody, but she has the children in her custody a about a month more than I do each year, and our decree provides that my ex-wife has tentative final say on legal custody issues, subject to my right to bring it to mediation or review by the court.
ANSWER:
As things stand now, odds are (odds are) that you will lose this fight. Sorry, but it’s the truth. Why, and what can you do to improve your odds?
First, there is a bias in favor of awarding children to mothers. This bias is weakening and continues to weaken, but it’s still there. It’s easier to overcome than it’s ever been, but it’s still something you will likely have to contend with.
Second, under the terms of your divorce your ex has the kids in her custody more than you do, so when determining who will have primary physical custody of the children after the move, the presumption is that we keep the children with the parent who already has them in her custody more of the time already under the current provisions of the decree. And the fact that she has that damnable “final decision-making” authority also serves to marginalize you as a parent in this situation.
Third, and let’s be honest: Mom will never claim she decided to move to Missouri “in a fit of anger” or otherwise out of spite, and courts are reluctant to believe such a thing (so unless you have conclusive proof or at least some extremely compelling evidence of a “spite move,” you may actually be better off not even raising the subject for fear of looking like a paranoid crank).
The simple, if unpopular, fact is that courts favor the mothers in these situations. And you have to remember that it’s not a matter of what you know to be the case or even what your ex-wife knows to be the case, but what you can prove to the court and what stories the court will and will not believe. Some judges and commissioners prejudge cases and believe they have the whole thing worked out before they review all of the evidence or review it fully.
I’ve seen countless cases just like yours where you have joint custodial parents, one parent spending more time with the kids than the other, and then one of the parents decides to relocate, and the heartbroken parent who’s not moving who is trying desperately to preserve the relationships with the kids and wondering why it is that one parent can just up and leave with impunity.
The idea that your ex-wife would ever admit that she is moving out of spite is ludicrous. Of course she’ll never fess up to that. She will deny it. She and her shyster attorney will come up with plausible sounding reasons for the relocation. So you have to ask yourself: how will I win an argument against the parent who has custody the majority of the time and who is the mother and who will have no compunction against lying to improve your odds of success?
It is naive to hope to persuade to judge or commissioner that the kids are better off with Dad when the dad that the children currently spend less time with than the mother.
HOWEVER,
You may be able to snatch victory from the gaping jaws of defeat, if you can show, among other things, that her move is a spiteful move, not one born of necessity or preserving/fostering the best interest of the children, that her move would do the children more harm than good, that it would take the children not only from you, but from a crucial and broad extending family and friends support system, etc. While marrying a man who lives out of state or whose job requires him to move out of state is a legitimate argument, moving merely to be closer to a boyfriend is a pretty lame excuse for moving.
Another way to improve your odds is to take action to prevent her from moving. What kind of action? One thing I’ve found effective is to tell the parent who is contemplating a move that if she moves to Missouri, you will too. You’ll move to the same neighborhood so that you can ensure that you’re close to the children and then move for joint physical custody and a modification of child support due to the change in circumstances. Easier said than done, I know, but if you can manage it, it has a strong preventative effect. Your most likely path to success (saving money, time, effort, frustration, and damage to your reputation and relationship with your children) is not trying to seek vindication within the system, but trying to find a way to defeat your ex-wife machinations using methods that are legal but within your power to control.
Utah Family Law, LC | divorceutah.com | 801-466-9277