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FAMILY LAW ARTICLES

February 9, 2021
Move Aways: Will The Move Be Detrimental to the Child?

 

Hello, Carla Hartley here today. I am going to continue our discussion of factors the court must consider when a parent files a request to move away with minor children or just a minor child. In my previous video, I discussed whether or not we had a true joint custody situation or whether we had a primary parent for purposes of a move away analysis.

This next factor I’m calling factor #2 simply to keep these videos in order is going to have to be analyzed in both scenarios. Whether we have true joint custody or whether we have a true primary custodial parent. So the factor itself is the court must decide whether or not there is a showing of detriment to the child in the move away scenario.

Now if we have a primary custodial parent, so we have one parent that’s got the child most of the time. This is not a true joint custody situation as has been laid out for us and described by the appellate courts, then the showing of detriment is not going to have the impact that it would otherwise have. Now, for the most part your family court judges are going to look at this and think this is a disruption in the kid’s life, and it is. It might be a disruption for the better. It might be a disruption for the worse, but it is a disruption and it is going to affect the child’s relationship with one of the parents.

When we have a primary custodial parent who has a presumptive right to move away, then the other side the other parent must show that the detriment to the child will be so severe that it is necessary to flip custody. This is a very high standard and it is very problematic for parents who don’t have primary custody. In other words, you have one primary custodial parent and then you’ve got another parent that does not have the same degree of custody, the same degree of involvement with the child.

I deliberately decided not to get into specifics last time. I’m avoiding that this time. You’ve got to talk to an attorney. This is too nuanced for me to just give you a rule and expect you to run with it. But in that case that the standard is just so high, how are you going to prove that this child who has been previously deemed by both parents and or by the court to be better off in one parent’s primary custody with limited visitation to the other, how are you going to prove that the move is going to be so bad that custody should be switched over to the other parent, to the non-custodial parent. Doesn’t happen very often. It happens but not often. So that’s that analysis with detriment to the child.

Now, we also have to look at the detriment to the child when we have the situation where we do have true joint custody or we do have two very involved parents. Now this true joint custody is not equal custody. It’s not just an order that says 50/50. True joint custody is also very qualitative. So again talk to an attorney. But what you need to know, when you have true joint custody this detriment issue, this issue of detriment to the child in the event of a move away takes on much more weight because now you’re disrupting potentially a primary bond with the parent who’s not moving or with the parent who is moving and the court, when you have true joint custody, very often what the court finds itself faced with is doing a de novo determination of what would be in the best interests of the minor child. De novo means “all new,” not going on this history of that parent had the most custody. So those are a couple of big things.

Now in the context of what I’m discussing here, detriment I have mostly stuck with as referring to how it’s going to disrupt the child’s relationship with one or the other parents in the event of a move away. Sometimes you can have a move away without that disruption and then there is no detriment. Sometimes the disruption is catastrophic. This is going to continue to be discussed as I go through the remaining factors. I hope this has been helpful. I hope if you’re contemplating a move away with your child that you will contact an attorney because this is nuanced. It is not simple and none of these rules are bright line rules. None of them are. They all have a variety of factors that have to go into them and I can’t go into all those factors in one video or even a series of videos.

Thank you. I hope this has been helpful.

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