Divorce Solutions

Question #10

My wife of 15 years is filing for divorce. Although she initially claimed it was due to “unhappiness and falling out of love,” I have since found out that another man is also involved. She has advised that she wants to move to another state (where the other man resides as well) even before the divorce settlement as this is where she plans to start over and wants the kids “settled” as soon as possible. We have three children ages 6 through 13 with – to all have been a very committed, involved dad. We move quite frequently (usually every few years) because of my line of work, so I realize we don’t have a solid “home base.” I cannot move where she plans and continue to support the family. She claims while she doesn’t want to take the children away from me, that she will seek this move through the courts if she has to. She reasons that as a stay at home mom, she will be granted primary custodial rights anyway, and will as such have the right to move eventually. Is this true? What options do I have?

Although it is true that the court has somewhat lifted its restrictions on allowing the custodial parent to move with the children unless there were “exceptional circumstances,” your wife is incorrect in suggesting that she will have an easy task convincing the court that she may move with the children and by so doing, interfering with your ability to develop a long-lasting and continued relationship with the children. Today, the court’s ultimate decision will be based on the following:
the good faith of the parent in requesting or opposing the move; the quality of the relationships between the child and the custodial and non-custodial parents; the child’s respective attachments to the custodial and non-custodial parent; the impact of the move on the quantity and quality of the child’s future contact with the non-custodial parent; the feasibility of preserving the relationship between the non-custodial parent and child through suitable visitation arrangements; the possibility of devising a visitation schedule that will enable the non-custodial parent to maintain a meaningful parent-child relationship; the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move; the quality of the lifestyle that the child would have if the proposed move were permitted or denied; the negative impact, if any, from continued or exacerbated hostility between the custodial and non-custodial parents; the effect the move may have on any extended family relationship; the non-custodial parent’s interest in securing custody, as well as the feasibility and desirability of a change of custody.

The ultimate consideration is whether it has been established by a preponderance of the evidence that the proposed relocation would serve ” the children’s best interests.”

In general, the courts are still reluctant to allow such a move unless there are significant reasons that are in the best interest of the children to warrant such a decision.

If you are living in the New York City metropolitan area, please call me at 212-370-1660 to discuss mediating this issue with your spouse. It can save you time, money, and a lot of aggravation. Going to court should be your last resort, not first in resolving this issue.

Leonard M. Weiner, Esq./Divorce Solutions