Relocation is an issue that often comes up in child custody cases. Parents are separated. They move on with their lives and the next thing you know someone has a new job or gets remarried and wants to move away. It happens. When it does, what can you do?
We previously discussed the Family Court Rules of Practice and Procedure (FCRPP) dealing with relocation. Under FCRPP 7(2) there is a distinction that is made between how the process is handled depending on whether the parties have joint or sole legal custody. Most couples will have joint legal custody and this is where a co-parent has the most recourse. The rule in joint custody cases says,
"Before a joint custodian seeks to relocate, written notice shall be filed with the court and notice shall be served on the non-relocating joint custodian. Either party may file a motion for change of custody or time-sharing within 20 days of service of the notice if the custodians are not in agreement; or, the parties shall file an agreed order if the time sharing arrangement is modified by agreement."
Working through this rule, the joint custodian has to file notice with the court of his/her intent to relocate. Note that this is a requirement whether the parent is the primary residential parent or not. Then jumping ahead to the end of the rule, "the parties shall file an agreed order if the time sharing agreement is modified by agreement." The the time sharing schedule will still work in spite of the move, nothing new has to be filed. The problem arises when the time sharing schedule will be affected and the parties cannot agree. The relocating parent will usually want to go ahead and move before the case can be heard by the court.
This was in fact the scenario under the original FCRPP 7(2) in the case of Jackson v. Crockett. The mother did not follow the rule and proceeded to relocate. By the time the parties got to a hearing on the father's motion to modify time sharing, the mother and child had already been living in their new location for approximately six months. Of course, by that point the child had adjusted to her new residence and become integrated into the community and the court denied the father's motion. Justice Nickell wrote an excellent concurring opinion and noted that, while he agreed with the result, it concerned him that the courts were essentially rewarding the mother for failing to comply with the rules. Justice Nickell pointed out that the analysis of the case for the best interest of the child before a relocation is much different than the analysis after a relocation. Based on this, the best tactic may be to request that the court issue an injunction prohibiting the removal of the child from his/her current venue until such time as the court can conduct a full hearing on the time sharing issue. This is, in fact, the method used in Illinois which has a well-established relocation statute.
This type of scenario may be able to be avoided if your attorney files a motion with the court asking the judge to prohibit the child from relocating until the case can be fully adjudicated. Depending on the specific facts of the case, a judge will, at a minimum, consider such a motion.
In cases where one parent has sole custody, it appears that the non-custodial parent will have a much more difficult time. In order to prevent the move, the non-custodial parent would most likely have to actually convince the court to modify not just the time sharing schedule but the custody decision as well. If it has been less than two years since that order was issued, that will require a showing of serious endangerment not just best interests.
If your ex has informed you that he/she intends to relocate or has actually filed a notice with the court, the last thing you should do is delay contacting your attorney. You need to move quickly to ensure that your rights and those of your children are protected. If you have more questions, contact the Alford Law Office.
Photo courtesy of Jared and Corin
Labels: best interest, child custody, divorce, divorce lawyer, ex husband, ex wife, family law, illinois, kentucky, modification, motion, nonresidential, paducah, relocate, visitation