Father’s Rights in a Divorce

No facet of a divorce is more volatile than child custody, particularly when a child is removed a great distance from the home and the environment he or she knew when his or her parents were married. Relocation and removal of a child often causes the noncustodial parent, usually the father, to drift away from the life of his child, and it has given rise to the concept sometimes called "fathers' rights," which seeks to further the notion that custody decisions should not discriminate against fathers.

Despite the emancipation of women in the last thirty years, courts generally award children to mothers. Unless a woman is grossly incompetent as a parent, she will be awarded physical custody in most jurisdictions. Mothers, with the approval of the courts, move children beyond easy visitation of the noncustodial father. The movie Kramer v. Kramer poignantly depicts the heartbreak of a father trying to retain custody of his young son. Despite his superior competence as a parent, young Kramer loses custody to his wife (who, having won, backs off because she feels unequal to the demands of parenthood even though the court awarded her the boy).

Relocations of 100 or fewer miles generally may not be an undue hardship because it permits visitation on an excursion basis. Beyond 100 miles, however, the proposed relocation can have an impact on child and spousal support, legal and physical custody and property distribution because the courts recognize that the relocation fundamentally changes the relationship between the child and the noncustodial parent, particularly because of the costs of visitation. The costs incurred by the noncustodial parent to exercise visitation are now taken into consideration and may become the responsibility of the custodial parent. Beyond 100 miles, the very quality of the relationship between a child and his or her noncustodial parent will be markedly different because the exercise of visitation will be difficult, if not impossible. Weekly visitation rights don't mean much if one parent removes a child so far from the other that the noncustodial parent cannot reasonably exercise visitation without heroic effort. The relocation often sets in motion a parental drift by the noncustodial father, which can become even more pronounced when he remarries and has a second family.

The long-distance relocation of a minor child can work to the disadvantage of a noncustodial parent. Email and the telephone are poor substitutes for face-to-face contact and shared experiences that are the stuff of memories for both parent and child.

Different states apply different standards to child relocations. In general, in custody cases involving shared or alternating physical custody permission to relocate is more difficult to obtain.



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THE DON’Ts – Good parenting through divorce has a dimension that is negatively defined. Good divorced parents do not speak badly or make accusations about the other parent in front of a child. They do not force a child to choose sides, or use a child as a messenger or go-between, or pump a child for information about the other parent, or argue or discuss child support issues in front of a child. In short, they do not use a child as a pawn to hurt the other parent.
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