"Making sure that a child knows that the love, support, and effort you give and show them is not geographically conditional is the most important thing in this situation."
The old expression is that distance makes the heart grow fonder, and while that can create an intensified sense of attachment to individuals that may have been left behind, it also can create legal ramifications, especially for divorced parents. This is primarily due to pre-existing obligations, like alimony, child support, and custody schedules that tend to dictate the lives of the ex-spouses/co-parents that provide not only their love and support, but their legal requirements, as well.
In situations where a parent feels that they can do a better job of providing for their child and themselves out of the state that they currently reside in, the issue then is regarding the custody and visitation schedule of the child, as well as the ramifications for the parent staying in the given area.
If the parent with custody is the one to move and the opposite parent is opposed to the idea, the start of the process usually involves a trial where the stationary parent pleads their case for why the moving parent should not be allowed to move with the child. Notification must be given to the stationary parent at least 60 to 90 days beforehand, depending on jurisdiction. This allows for the opportunity for objection.
For example, in the state of Kentucky, the move cannot happen without first making an agreement with the stationary parent, regarding any changes in visitation needed after the move. These changes need to be put in writing, with a copy of the agreement with the family court.
If they cannot reach an agreement, the judge will decide during a court hearing, where the stationary parent has a chance at gaining custody. If the move has already happened, contact a lawyer at your soonest opportunity.
One of the challenges that arises when sorting out out-of-state custody dispute is the establishment of a home state. For example, in the state of New Jersey, if no court has ever had on record an order for custody or visitation, a court in the state where the child and care-giving parent has lived for the last six months is the state court that will generally resolve the case.
This also helps establish what the home state is, as if the child is less than six months old, the state that the child was born in and lived in since birth is considered the home state.
However, if a child has not lived in one state since birth or for the last six months, he or she has no home state. In these circumstances, the court weighs the options, considering significant connections between the child and the state, and decides which state can best resolve the issue.
Opportunities and factors
There are additional factors that come into play during a custody hearing related to an out-of-state move. The courts have to decide whether the needs of the child would be met in a different state. Although not a deciding factor, many courts also seek the opinion of the child, as to where they would like to be. Parental incomes, living conditions, and educational opportunities for the child also are examined.
One of the more underrated elements to this discussion is how the move affects the relationship between ex-spouses. Due to having a child or children together, they will forever be tied by their shared responsibility as parents, and this is an accepted fact during the out-of-state court hearings regarding custody.
Their ability to be parents will be individually judged, as will their ability to communicate effectively among one another. These hearings are not about taking away parental rights and should not be made to display an ex-spouse’s animosity toward their divorced other half. That is dangerous behavior that could lead to desperate action.
The fear of parental kidnapping
When it comes to custody disputes that are related to distance and moving, the danger of parental kidnapping surfaces. This can create a need for vigilance and extra caution for courts and parents alike. The 2006 Code of Virginia helps guide U.S. courts in identifying these cases and how to proceed with them. The code states the following:
“…that any person, who, by force, intimidation or deception, and without legal justification or excuse, seizes, takes, transports, detains or secretes the person of another, with the intent to deprive such other person of his personal liberty or to withhold or conceal him from any person, authority or institution lawfully entitled to his charge shall be deemed guilty of ‘abduction’.”
In addition, the Uniform Child Custody Jurisdiction and Enforcement Act reformatted previous national laws, the Uniform Child Custody Jurisdiction Act and the Parental Kidnapping Prevention Act (both adopted by every state in 1981), in 1997, in order to discourage interstate kidnapping by non-custodial parents and add interstate civil enforcement for child custody orders. Before these laws were introduced, interstate kidnapping was a practice used to find more sympathetic courts willing to reverse unfavorable custody agreements.
The well-being of the child is the most important thing to the courts and to the parents. Moving to a new state can generate a future of uncertainty, but making sure that a child knows that the love, support, and effort you give and show them is not geographically conditional is the most important thing in this situation.
Dan Pearce is an Online Editor for Lexicon, focusing on subjects related to the legal services of customers, Cordell & Cordell and Cordell Planning Partners. He has written countless pieces on MensDivorce.com, detailing the plight of men and fathers going through the divorce experience, as well as the issues seniors and their families experience throughout the estate planning journey on ElderCareLaw.com. Mr. Pearce has managed websites and helped create content, such as the Men’s Divorce Newsletter and the YouTube series, “Men’s Divorce Countdown.” He also has been a contributor on both the Men’s Divorce Podcast and ElderTalk with TuckerAllen.
Mr. Pearce assisted in fostering a Cordell Planning Partners practice area specific for Veterans, as they deal with the intricacies of their benefits while planning for the future. He also helped create the Cordell Planning Partners Resource Guide and the Cordell Planning Partners Guide to Alternative Residence Options, specific for seniors with questions regarding their needs and living arrangements.
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