Move away after divorce cases arise in a variety of ways. Sometimes the move away occurs within the divorce. Sometimes it involves a job opportunity, sometimes a new mate, sometimes just going ‘home.’ In the typical case the custody order says that the children’s primary residence is with Mom, and mom has the larger time share. On the other hand, the custody order also says that Mom and Dad have joint custody (i.e., joint legal and physical). Let’s look at a typical case.
Mom and Dad were divorced three years ago after a ten year marriage. She’s a local manager in a nationwide company. He’s a fast food franchisee with two local stores. They have three children, a twelve year old girl, an eight year old girl, and a four year old boy. They live in the same school district. Things are OK until Mom gets a major promotion with a huge increase in pay. Well, what’s wrong that? Nothing, except that the new job happens to be 2,000 miles away in Atlanta and it starts in 30 days.
Mom cannot pass this up. It’s the chance of a lifetime. She tells Dad she’s moving to Georgia with the kids in three weeks. Dad says, over my dead body. His attorney immediately files an Order to Show Cause requesting that sole physical custody be given to Dad. The earliest hearing date available is two months away, so Dad’s attorney also asks for a temporary restraining order preventing Mom from taking the kids out of California. Does he get it? Probably, because Mom’s moving with the kids would make mincemeat out of the present time share, and offend one of the primary custody considerations - the stability of the children.
So Mom files her own Order to Show Cause requesting that sole physical custody be given to her, moves to Atlanta, and leaves the kids with Dad pending the hearing. What can we do for Mom at the hearing if we represent her? If we’re lucky, Dad’s time share is much less than 50%, say 35%. We would then argue that in substance Mom has sole physical custody and a presumptive right to move with the kids. This places a bigger burden on Dad than otherwise. He will have to make a preliminary showing to the judge of detriment to the kids if they go with Mom.
If he’s unsuccessful, the judge may stop there and rule for Mom without a full hearing. Generalized claims by Dad that public education isn’t as good in Atlanta and that it has a higher crime rate will not be enough, particularly if we get Mom to testify specifically about the great new home she’s already picked out in a safe neighborhood with an award winning school.
What can we do for Dad at the hearing if we represent him? First we have to convince the judge that a 35% time share is high enough to be genuine joint physical custody. This will probably work, because the most relevant judicial opinion suggests that a time share above 20% qualifies. If we are successful, the burden will not be on Dad to show detriment before the judge allows a full hearing, and at the full hearing Dad will start on an even footing with Mom. We will do our best to convince the court that giving him sole physical custody (so the kids stay here) will be in their best interests. Mom will do the opposite.
For Dad we would stress the paramount need for stability, focusing on the established relationships and activities of the two older children. We might also suggest that while the four year old may have bonded already with Mom, he has not yet bonded completely with Dad, and if he goes to Atlanta he never will. Since judges almost never split up siblings, this is a good argument. We would also point out that when Dad has the kids Mom rarely shows up at school activities and parent teacher conferences, while Dad shows up religiously at all of them, even when they occur during Mom’s time. And we would find friends of both Dad and Mom (to squelch any claim of bias by her) to testify that Dad is a first rate dad. Lastly we would suggest that the demands of her new job will leave Mom with very little time for the children if they go with her to Atlanta.
For Mom we would reverse the stability argument. After all, Mom only worked part time before Dad moved out, so she’s always been the primary care giver. That relationship should not be disrupted, particularly when the twelve year old girl is about to enter puberty. The evidence will also show (we hope) that Dad is still bitter about the divorce. He makes the exchange of the children difficult, alters the time share schedule unilaterally, and can’t restrain himself from criticizing Mom to the kids. Mom acts just the opposite. We will suggest to the judge that Mom will do a much better job of maintaining the children’s relationship with Dad if they are with her in Atlanta, than Dad will do maintaining their relationship with Mom if they stay here with Dad. Lastly, we would point out that Dad is making a bundle from his restaurants and employs managers for both of them. He has plenty of time and money to visit the kids frequently in Atlanta.
How will the judge rule? We’ll only know after the hearing. He might surprise everyone by sidestepping a change in custody altogether and leaving it joint, with the children’s primary residence still with Mom, but in Atlanta, and ordering a time share plan that maintains Dad’s percentage at thirty-five. Instead of splitting summer vacation equally, Dad will get the lion’s share, and he will also have the children for all of Christmas and Spring Break two years out of three. Neither Dad nor Mom will be overjoyed with this, but that probably means the judge has made a fair decision.
San Diego Divorce Attorney Stanley D. Prowse is a California Certified Family Law Specialist. We welcome your legal inquiries.