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June 6, 2021
Factors To Consider For Move Aways With Minor Children: Custody

Hello, Carla Hartley here. Today I’m continuing our discussion with move aways by discussing factor number one. All right factor number one when discussing a move away in the context of do we have children, do we have jurisdiction that’s already established? So we have paperwork that’s already been served that establishes a court’s jurisdiction over the children of this case. Those two things are big issues. That we have jurisdiction established over the kids in a particular court in a particular state. We have a move away and the parent moving away wants to move with the children. So how do we start analyzing this.

Factor number one, do we have a primary custodial parent? This gets a little bit tricky, especially since many of the courts and the legislature seem to have gotten away from calling one parent or the other primary. They’ve gotten away from certainly calling, you know visitation time as visitation. Now, it’s all custodial time. So you’ve got one parent with more custodial time. One parent with less custodial time. This this is not true joint custody. This is really interesting. It’s one of the points where the courts are not in agreement with the legislature on what’s happening. So you’ll have an order.

The order that may be before you now, says you have joint legal custody and joint physical custody, but it’s going to come down to the custodial timeshare as to whether the courts, not the legislature, the courts think that you actually have a primary custodial parent. Whether you’re the primary or the non-primary custodial parent or whether the court is going to say “Yes, what we have here is true joint custody.” True joint custody is not just established by an equal time share. 50/50.

If you have an order for that and if the parties are actually exercising that, you have true joint custody. What is the percentage at which the courts have decided that one parent is the primary parent and the other one is the non primary parent? Why is that important? It’s important because the parent who is the true primary parent has a presumptive right to move with the children out of the area. That is so significantly important because the presumption establishes that you have the right to move.

Now the burden of proof shifts to the non-custodial parent who has to show that there’s going to be some significant detriment to the child. That’s the next factor we discuss. So your first thing is what percentage of time do we have to have for you to have a presumptive right to move with your child? I’m not telling you that percentage. The reason I’m not telling you that percentage is because I don’t want people saying “Miss Hartley said so” when they go and talk to a judge in my jurisdiction or anybody else’s jurisdiction.

So my suggestion to you, if you’re close to equally shared custodial time you do not have a presumptive right to move. If you are somewhat significantly less than equally shared custodial timing, you must talk to an attorney to see if you have a presumptive right to move from the location where your court has jurisdiction, where your children have been domiciled for the past six months, a year, whatever how long it’s been. I think that’s as far as I can go with this.

So what I’ve covered we want to discover if one parent is the true primary custodial parent as a matter of looking at the percentage of custodial timeshare. It’s a lot of case law in that. There’s a lot of good information on it, but mostly you need to talk to a good family law attorney who can give you that good information. I hope this has been helpful. I hope you are going to contact an attorney if you’re looking at moving out of state. Whatever you do, don’t just up and move. Thank you. Bye. Bye.

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