Divorce Solutions

Question #8

My ex and I have been separated for 4.5 years. I found out he was having an affair in 2003. When confronted, he voluntarily left the home we lived in Staten Island the very next day. He moved in with his parents, who live in Northern New Jersey, where he still resides today. We are currently waiting on our divorce papers to be signed and filed in Richmond County, which I did on my own with the NY divorce packet. I have had physical custody of our daughter, who is six now since that time. The first year and a half after he left, he was pretty much non-existent to us and didn’t help us in any way. I subsequently sold the house, which was in foreclosure at the time, and moved into a 2br apartment. Throughout all of this, I asked him repeatedly to come back, and we would try and work things out. Each time he told me no; that he was in love and would never be coming home again. After his girlfriend and he broke up, he wanted to come back home. I told him at that time that it was too late and that we needed to move on and get a divorce. My ex sees our daughter every other weekend (although he works all the time (not always mandatory) and usually gets to spend one day with her – Sunday). He will pick her up on Friday night, go to work all day Saturday, and then he will spend Sunday with her. He gets in one day during the week when he can, and when he does, he spends 2 hours with her. He has also mentioned that the driving back and forth from NJ to SI is too much for him. Well, a year and a half ago, I met a wonderful man. He is in the military (Navy) and has been for 17 years. He is now on an overseas tour in Japan for three years, after which he will either retire and come back to the states or reenlist and come back to the US. We are seriously talking about getting married when my divorce is final and possibly having my daughter, and I go there for a year or two to live with him. I live in NY, where it expensive, and I am hardly able to make ends meet for both of us here on my own. When the bills are paid, there isn’t a lot left over. Would this be considered a considerable change in circumstances, and what are the chances a judge would look favorably on this situation and allow me to go with my daughter to Japan? She would have access to everything on the base and also be exposed to a new culture, etc. Thanks!

I cannot overemphasize the need to use experienced legal counsel when getting a separation or divorce. Here is another example of someone trying to cut corners by preparing her own papers, and now is in a pickle. Had you used experienced counsel, the separation agreement would have dealt with this problem of being the residential parent and wanting to move to a different location. To answer your question correctly, I would have to investigate whether there are any relevant provisions in the separation agreement.

Until recently, the courts in New York have been very strict about allowing a residential parent to move away with the child and thus interfering with the ability of the non-custodial parent to relate to his or her child. Today the courts are somewhat more open to extenuating circumstances. The court ultimately judges those circumstances based on the criteria of whether it is in the best interests of the child to move, not on the best interests of the custodial parent to move. The answer to your question will ultimately rest with the decision of the judge and your ability to convince the judge that your move is, in fact, in the best interests of the child and that the non-custodial parent will be able to maintain a viable relationship with the child despite the move.

This issue could have been resolved had you used experienced legal counsel who would have discussed this matter with you before you signed the separation agreement or divorce papers.

Nevertheless, if you are living in the New York City metropolitan area, I strongly suggest that you call me at 212-370-1660 to discuss mediating this matter with your spouse and trying to resolve this matter outside of the courtroom.

Leonard M. Weiner, Esq./Divorce Solutions