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FAMILY LAW ARTICLES

January 23, 2021
Questions A Court Must Consider Before Granting A Move Away

 

Hi, I’m Carla Hartley, and today I’m going to be continuing our discussion about moving away in the context of a family law preceding. Today’s discussion is going to be centered on an overview of what the court has to look at when a case has been filed, we have paperwork that has been served, so we have a court that for sure has jurisdiction and now one party wants to move with the child or the children.

For the purposes of this video, I’m going to refer to this as one child, but the rules pretty much apply across the board to child or children. Today’s an overview meaning there are many factors that the court must consider. They are going to have different weights. I’m not going to go into the procedural requirements because you know Trade Secrets. I’m not telling you everything but the primary questions that a court must consider before granting a move away are well established by case law and are in the list that I’m giving you here today.

After today, I’m going to break each one of these out and provide a separate discussion on each item. And again, there’s no way to get to the bottom of this in even, you know, a bunch of videos, but I’m going to try to give you a good overview so that you can look at this and say “Hmm. Maybe I have a chance to move away”,” or “Maybe I have a chance to stop that other side from moving away.” Certainly, you should know your rights before agreeing to anything.

What questions does the court have to answer in order to grant a move away in the context of an active
and served family law proceeding?

  • Is there a primary custodian? Not getting into definitions here.
    We just have to start figuring this out. This is one of the questions.
  • Can the party objecting to the move prove detriment to the child sufficient to cause the
    court to want to switch custody to the formerly not primary custodial parent?
  • Will the move have a substantial chilling effect on the non-custodial parent’s relationship with the children?
  • How will the move affect the child’s interest in stability and continuity in the custodial arrangement? That I think is something that a lot of parents don’t consider and the court must consider it.
  • How far is the primary custodian planning to move? The length of the move. The distance of the move is important obviously. Where the primary custodian is planning to move is also important.
  • What is the child’s age level of maturity and the child’s wishes? This is a large thing if the child
    is old enough to have a significant preference and if the child is statutorily old enough that the court must take it into consideration, then the child will have a lot more influence on what happens, but if the child’s age and level of maturity are not sufficient for the child to be making a good decision that it can enforce itself, then probably this won’t be given as much weight.
  • What is the quality of the child’s relationship with each parent?
  • What is the quality of the relationship between the child’s two parents? Again,
    that’s something that’s important.
  • What are the reasons for the proposed move? That’s a tricky one and while on it’s surface that looks like an easy answer,
    it really does call for a further in-depth examination.

So that is the broad overview of what a court has to look at when one party wants to move away with the child from the immediate area, and I think it’s worth considering because we have an increasingly transient society. We have a lot of military people who must move pursuant to court orders and a lot of times we see that people just can’t afford to continue to live in the location where they’re at especially in the context of getting a divorce or breaking up with their child’s parents or the child’s other parent. Suddenly we’re looking at the income that supported one household now has to support two so move aways are a big issue. It’s a big topic and the court takes them very seriously because our courts, at least the courts that I regularly appear in front of are very vested in and very much involved with trying to make sure they’re deciding what is best for your child.

That’s all I have for today, and as I said, I will be presenting a series of videos breaking each one of these points down over the next couple of weeks.

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