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Post Divorce Relocation Rights of the Custodial Parent - Part I
Upwardly spiraling divorce rates among two-income families coupled with the relocation expectation, or even demands, of regional, national and international corporate employers, have fomented a narrow but incipiently prolific area of post-decree litigation in matrimonial cases in virtually every state jurisdiction across the United States.
The usual factual scenario presented, which resuscitates a seemingly terminated divorce proceeding in the form of modification pleadings, is the ever-common instance where a working mother, the primary caretaker, is awarded child custody in a circuit court of West Virginia and long term employee father is reserved Schedule "A" or, other reasonable visitation privileges. Subsequent thereto, mother is transferred by her employer to Texas; or in the alternative, mother chooses for economic, social or certain other nefarious or ill-considered reasons to move to North Carolina, which measure, in either case, has the practical effect of severely curtailing, if not extinguishing regular weekday and alternative weekend visitation, leaving only irregular major holidays and infrequent summer vacations. Moreover, the non-consensual incidents of parental interactions, ancillary to structured visitation where parents reside in the same geographical area, such as recitals, school plays, PTO meetings and Little League, have been eliminated.
Since all but a meager number of state legislative bodies have failed, neglected or refused to address anything more than the preliminary or epidermal layers of the decidedly complex custody/visitation aspects intrinsic to a newly transformed family unit already fragmented by divorce; and in the absence of a model uniform statute providing guidance or control on this "geo-legal" question, those few state courts deciding the issue and not exhibiting what appears to be the prevalent trait of reluctance on the subject, have not established a general rule or even attained a consensus in resolving the dilemma, thereby rendering impotent the predictability function of the law in this regard.
Is the post-divorce move virtually automatic grounds for outright change of custody or visitation? Does the custodial parent have an absolute, meaning constitutional, or only a qualified right, to relocate his or her residence? Who has the burden of proof? What judicial or evidentiary weight does the affected child's opinion carry regarding his uprooting and transplanting? Are the motivations or rationale for the migration of the child custodian probative or relevant? Does the primary caretaker standard become secondary to the best interests of the child in a geographical transfer situation? What remedies does the non-custodial parent have available? Will the distance of a move impact on the requested modification relief?
The avowed objective of this academic endeavor shall be to direct, evaluate, and discuss the legal questions raised hereinabove, which have proven to be endemic to the dissolution of marriage in an increasingly mobile society; and, if not offer solutions to the problems presented, this article, at least, would be intended to suggest preventive and remedial measures to the pracitioner or the party in an effort to enhance the positive points of his or her relative position. Conversely stated, in negotiations or upon litigation, this work may provide some little assistance in exposing and exploiting the soluble features of the case in opposition.
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The primary consideration in child custody is the best interests of the child, according to the West Virginia Code. The judge in a custody case looks at several factors including who historically served as the primary caretaker of the child, the physical and mental health of the parents and the child, age of the child, and the type of residences maintained by each parent.
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