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Life After Divorce - Can I Move With the Children?
(provided by Stephens Margolin, P.C.)
I was divorced 3 years ago and wish to remarry and relocate to my new spouses' home in another state. Can I?
Only if your Judgment gives you specific authority to determine the children's place of residence. A sole custody judgment does not give you the right to move without additional steps. We live in a mobile society, and many people do relocate with the children away from the former spouse, but moving without following the court order or the proper procedure can put you in contempt of court, place you at risk of criminal prosecution, and can result in a change of custody.
My Divorce Judgment has a clause that appears to restrict moves? What does it mean?
Oregon court orders or judgments that grant custody or parenting time with children must contain a notice provision that provides that "neither parent may move more than 60 miles further distant from the other parent without giving the other parent reasonable notice of the change of residence and providing a copy of such notice to the court." This clause does not mean you cannot move, but that you must tell the other parent in advance, in writing, of your intent to move.
How can I get the other parent to cooperate with the move?
An award of sole custody does not give you the right to make unilateral relocation decisions. A Judge hearing your moving request would want to know what steps you took to accommodate and preserve the other parent's relationship with the children in light of the move. Try to cooperatively reach an agreement with the other parent. Offer extra time during summer and school vacations. You could offer to pay all or a portion of the air fare for the children to travel for parenting time.
What happens if we cannot reach an agreement on the move?
Some parents, for a variety of reasons, will never consent to a move. If the other parent will not consent, you will need to file a motion to modify the order or judgment. You will have to mediate, either privately or through the county mediation program. You may need to participate in a private or public custody and parenting time study with an expert, usually a social worker or a clinical psychologist. The "expert" will make a recommendation as to whether the move is in the children's best interests. Even if the expert recommends that the children move with you, you must still reach an agreement or modify the existing court order prior to moving.
Can I move prior to the court hearing?
It may be possible to move pending a modification hearing, if you have a very strong case and the other parent's objections to the move are not reasonable. (For example, if the other parent has voluntarily not seen the children for an extended period of time.)
What kind of evidence will the Judge need at the hearing?
The court will make a determination as to whether the move is in the children's best interests. It will help to have a clear explanation for your desire to move, and a clear explanation of the benefit to you as the custodial parent and the children from the move. Have a plan for preserving the other parents contact and relationship with the children.
Can I just move without notice and consent?
Yes, but at serious risk to you and your custodial rights. Interfering with custody or parenting time can be a crime and result in criminal charges. Additionally, Oregon is likely to retain jurisdiction to hear the case for a period of time after you move, and the other parent could get an order changing custody, requiring you to return the child, and an order finding you in contempt of court for violation of the custody and parenting time agreement.
Can I move and request that the court in the new state modify the parenting plan?
Probably not, if the other parent is proactive about protecting their rights. Most states have adopted a model statute called the Uniform Child Custody Jurisdiction And Enforcement Act (UCCJEA) that governs where custody actions can be filed. Generally, you need to file in the child's home state, or where the child has lived for the previous six months.
Information provided by:
Stephens Margolin, P.C. located at
http://www.stephensmargolin.com
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