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Post Divorce Relocation Rights of the Custodial Parent - Part V

If the primary caretaker presumption stands for the proposition that it is in the best interests of a child to be placed in the sole custody of the fit parent who so qualifies, then that presumption must accompany that parent and that child throughout any intrastate or interstate resettlements. The Garska presumption should not disappear with the entry of the final divorce decree.

To deny a custodial parent a better station in life, an improved standard of living and enhanced financial advantage, wrought by bona fide relocation opportunities, is to make a custody award contingent upon the surrender of a constitutional right; i.e., travel and free movement across this nation. For this reason, the West Virginia Supreme Court of Appeals needs to meet, fully and fairly, the issue of parental moves within constitutionally protected travel terms. Given the central geographic location of this State, its relatively large transitory population and its historically migratory work force, clarification and guidance is not expected, but rather demanded.

More significantly, a definitive constitutional analysis of custodial parent positions regarding relocation is not only essential to the general predictability function of law, but also, it will permit the implementation of a best interests of the child test as a compelling state reason tempering, qualifying and guaranteeing, as nearly as humanly possible, a proper antecedent to the exercise of the travel right. Naturally, it follows that any best interests standard adopted by the Court, should be forged from evidentiary metal of empirical purity, devoid of presumptions and free of burdens of proof.

Finally, with respect to the child preference corollary, the Rose and Reynolds test utilized in rebutting primary caretaker status in initial custody awards, should be extended to relocation disputes.

Due to increasing matrimonial dissolutions, corresponding or even multiple remarriages, and younger custodial parents, ignoring the relocation dilemma is not to be recommended. The West Virginia Court twice has been presented with an occasion to resolve the foregoing metastasizing and perplexing quandary; it should not spurn the opportunity again. After all, the axiom lex that the polar star in custody cases is the welfare of the child, should govern judicial policies as well as judicial opinions.

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West Virginia divorce law establishes a preference for parents resolving custody issues between themselves. The court possesses the power to issue custody orders when parents are unable to reach agreement. To that end, West Virginia law directs parties in any domestic relations case to develop a parenting plan. The parenting plan deals with the nuts and bolts of effective divorced parenting.
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