Episode 116 - How do Courts Decide Custody When One Parent Moves Away?
For most families, a move usually means that there has been a change in jobs, a promotion, or parents just want to get closer to family. It is not that big a deal (except for the pain of moving). For a divorced family, on the other hand, it is a huge deal. Suddenly the child or children are going to see one of their parents a lot less. It is hard on the parent that is not moving as well as the children. It often results in the non-moving parent asking the Court to change custody so that the child does not move. In this show, we break down the factors that the Court considers when one parent is relocating. We also discuss what facts might be more compelling than others when deciding who gets primary custody.
Leh Meriwether: Welcome everyone. I'm Leh Meriwether. With me is Todd Orston. Todd and I are partners at the law firm of Meriwether and Tharp. And you're listening to Meriwether Tharp Radio on The New Talk 106.7. Here you learn about divorce, family law, tips on how to save your marriage if it's in the middle of a crisis, and from time to time even tips on how to take your marriage to the next level. If you'd like to learn more about us you can always check us out online at atlantadivorceteam.com. Todd you ready?
Todd Orston: I'm excited.
Leh Meriwether: You're excited. What are you excited about?
Todd Orston: I don't know. That's just always your line so I just ... I'm jealous, you're always excited.
Leh Meriwether: I am always excited.
Todd Orston: No I am excited because this is a topic we really haven't dug into on the show and it's an issue that, we say this often, that comes up all the time. And basically what we're gonna be talking about today is custody and more specifically relocation and we'll go into what that means, we'll define that. And then we're gonna go into a more in-depth conversation explaining how Georgia courts and how Georgia law deals with issues of relocation in custody disputes.
Leh Meriwether: Yeah. And what's really interesting is I've read about cases from other states and they take different approaches. So this is a very ... every state has its own laws but usually there are certain standards, it's kind of play across all the states. Like we have the Uniform Child Custody Jurisdiction Enforcement Act, those kinds of things. But when it comes to relocation each state has some very specific laws on how to deal with it. And in fact for the longest time and we're gonna talk about a little bit of the premier case that changed Georgia. But for the longest time if someone was moving out of state, so if a mom had primary custody of the children and one day she gets remarried, she says, "Hey I'm moving to California from Georgia." And that was the only issue that's going on, dad could do nothing about it. Because that by itself was not considered what's called a substantial change in circumstances that would allow him to get in front of a judge to change custody so the kids would stay here in Georgia.
Todd Orston: So let's start at the beginning. Obviously relocation what we're talking about-
Leh Meriwether: Oh I thought you were talking about the Big Bang or something.
Todd Orston: Yeah right.
Leh Meriwether: From the beginning.
Todd Orston: We're not gonna go back that far.
Leh Meriwether: Oh Okay.
Todd Orston: So we will talk about or let's talk about relocation. Relocation what we're talking about is both parties let's say live in Georgia but one of the parties wants to move. And really what we're talking about is that the party that wants to move is or may be the proper ideal parent, i.e. they want to take a child or children with them when they move. And at its most basic level I will tell you a court cannot stop an adult from going anywhere. You want to move to Timbuktu? Fine.
Leh Meriwether: As long as there's no criminal charges looming, some probation.
Todd Orston: That's right. That's right. You're not fleeing the jurisdiction, right.
Leh Meriwether: There's no probation conditions.
Todd Orston: Right. But if we're not talking about probationary issues then an adult can go wherever they want and a court outside of a criminal context cannot tell that adult what they can or cannot do or where they can or cannot go. But what a court can do is limit where the children will go. Once they have jurisdiction over that child you need to understand that the court can control where the child goes. And what that means is if mom is going to be let's say the primary custodial parent and mom says, "I want to move to Alaska." And I think actually that state may come up as an example later in the show. Mom can go to Alaska. The court can't stop mom from going to Alaska. But the court can absolutely take steps and issue an order that might stop the child or children from going to Alaska.
Todd Orston: And so that in a nutshell is what we're talking about on the show today. We're going to talk about relocation. And I believe the best way to deal with it, you can't deal with relocation without first understanding the law in Georgia as it relates to custody and how courts deal with custody determinations. That area of the law and custody is dealt with by a code section. It is OCGA 19-9-3. So what we're gonna do is we're going to talk about OCGA 19-9-3 and that's going to lead us then into a more specific conversation about relocation.
Leh Meriwether: Right. So this area of the law, that's the code section here in Georgia, if you're listening in other state there's another code section there. And a lot of times these factors overlap on the states but you definitely want to talk to a local attorney about these but we're going to focus on Georgia because that's where we practice. All right. We're now in Florida we need to do some Florida ones to.
Todd Orston: Absolutely. That's a great conversation for after this show relating to Georgia.
Todd Orston: So let's talk about 19-9-3.
Leh Meriwether: So the first thing is there is no prima facie right, meaning that there is no presumption that the custody of the child should go with mom or dad or a mother or a father.
Todd Orston: And then what you were talking about before it was the opposite. What you were talking about before is prior to some changes in the law basically there really was once mom had primary custody it was assumed that absent some showing of unfitness or harm to the child, basically was assumed he or she was going to maintain custody.
Leh Meriwether: Right. Right. But this applies in an initial determination and a subsequent determination.
Todd Orston: Correct, correct.
Leh Meriwether: And it says there's no presumption in any favor of any particular form of custody, legal or physical, in favor of either parent. So the court looks at this, they take information, we're going to talk about the different pieces of information they look at, and they look at mom and dad and they try to find where should the child be during the course of a year on a primary basis with either parent and what's in their best interests.
Todd Orston: And we've talked about this before. The question has come up can a let's say father win custody in a divorce or some kind of a custody case. And because of the reading of the law that you just read the answer is yes because there is no presumption for either a mother or a father. 19-9-3 sets forth a number of things that the court is supposed to look at, and that's what we're going to go into, that the court's supposed to look at when determining what is going to be in the best interest of a child.
Leh Meriwether: And I think another point here is that only the judge can make that determination. Georgia is one of the few, if not the only state, that actually allows you to ... I don't know if it's the only, it's one of the few states that allows you to have a jury trial on a divorce. A lot of other states have a family violence ... a family violence, they have a family division where judges only make decisions when it comes to family law.
Todd Orston: But there are limitations in Georgia.
Leh Meriwether: Right. So only a judge, a jury cannot decide custody, only a judge. So that's another thing. So one of the things, let's talk about quickly the things that the court looks like, looks like ... looks at.
Todd Orston: You're going to get it right, don't worry about it. And I'm going to stick it out here with you.
Leh Meriwether: I'm going to start all over again. So all right. The love, affection, bonding and emotional ties existing between each parent and that child or children. The love, affection, bonding and emotional ties between the child and his or her siblings, half siblings, step siblings and the residents of such other children. The capacity and disposition of each parent to give the child love, affection and guidance and to continue the rearing of the child. Each parent's knowledge and familiarity ... [inaudible 00:09:00].
Todd Orston: You practice that one during the break.
Leh Meriwether: Yeah okay. Of the child and the child's needs. The capacity and disposition of each parent to provide the child with food, clothing, medical care, day to day needs and other necessary basic care with consideration made for the potential payment of child support to the other parent. The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors. The importance of continuity in the child's life and length of time the child has lived in a stable satisfied factory environment. That really comes into play when it comes to relocation. The stability of the family unit, of each of the parents in the presence or absence of each parent's support systems, which is another thing that comes into play. The mental and physical health of each parent. Each parent's involvement or lack thereof in the child's educational social and extracurricular activities. That's a long list, there's like 17 factors.
Leh Meriwether: Each parent's employment schedule and related flexibility or limitations if any of a parent to take care of the child. The home, school and community record and history of the child as well as any health or educational special needs of the child. Each parent's past performance and relative abilities for future performance of parenting responsibilities. You should say some of these.
Todd Orston: The willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent consistent with the best interests of the child. Any recommendation by court appointed custody evaluator or guardian ad litem. The family violence or sexual, mental, physical child abuse or criminal history of either parent and any evidence of substance abuse by either parent.
Todd Orston: And we are summarizing these. Understand it is a long list, it's a little more wordy but if you're going through this you're going to want to read this code section to really understand them. We're going to go into it a little bit more after the break.
Leh Meriwether: Yep. Up next we're going to get very specific with these factors and how it applies to relocation cases.
Leh Meriwether: Welcome everyone. I'm Leh Meriwether. And with me is Todd Orston. Todd and I are partners at the law firm of Meriwether and Tharp and you're listening to Meriwether and Tharp Radio on The New Talk 106.7. If you want to read more about us you can always check us out online at atlantadivorceteam.com. Well today we are talking about custody but more particularly relocation. So when a parent whatever the reason is, they've been promoted in their job, they had to take a new job, and they're having to move to another state. And so sometimes you have it where the non-custodial parent meaning the parent that doesn't have the child the majority of the time, they have to move. But it's usually a bigger case when the parent that has the child is having to move and the other parent can go to the court and ask for the court to change custody so the child can stay in the state.
Todd Orston: And like you were saying earlier, it used to not be the case. It used to be the case that if let's say a mom had primary custodial ... or primary custody, pardon me, of a child or children and wanted to relocate, if there wasn't something else to show the court that it wouldn't be in the child's best interest to stay with mom and relocation was the issue that you had, that's not enough.
Todd Orston: But that changed and where it really changed and what changed it wasn't the statute. It was case law. And again for anyone listening, you understand that we have a code, every state has its own code of laws. But that's not the end of the analysis. You don't just look at the code. You have to look at case law.
Leh Meriwether: And sometimes the word code you can substitute the word statute.
Todd Orston: Correct. Correct. So you have to look not just at the statute and applicable language in the statute. You have to look at cases that have come before the higher courts, the appellate courts, where rulings were given that really helped to define how the laws, the statutes, are to be applied.
Leh Meriwether: Right. And so just short summary about the way it works is the legislature passes a statute and the governor signs it into law.
Todd Orston: Are you going to start singing I'm Just a Bill?
Leh Meriwether: No because that's probably copyrighted and we would get in trouble. But when the legislatures are putting together a statute they probably only have a few scenarios in mind and of course life is never that static and as a result different scenarios have to be ... they have to apply the statute to these different factors and you can appeal certain types of cases up to the appellate courts and then they issue rulings that then we as lawyers can later use and the trial judges to make determinations. So the big case was Bodney versus Bodney in 2003. So not that long ago, at least it doesn't seem like it, I guess it is 16 years ago but-
Todd Orston: But we're not talking 30, 40, 50 years. I mean we're talking the 2000s this case came out and it really dramatically changed how courts look at and consider relocation in the context of custody determination.
Leh Meriwether: And I think it was absolutely the right decision. I was shocked. I remember when I moved up here to Georgia long ago I was shocked that that was the law. So anyways, so that's the ... because there was a lot of states that didn't have that is the law.
Todd Orston: And one of the things that attorneys are going to look at and we're going into this detail because we know that some people listening won't do some of this research on their own. So when a case comes out, well a case from 2003, there's always a chance that from 2003 to now another case came out that maybe changed the ruling that overturned the ruling in that Bodney.
Leh Meriwether: Right because Bodney overturned the law of previous Supreme Court cases.
Todd Orston: Correct. But that hasn't happened. Bodney is still good law and in fact there have been cases since like a Woodson versus Leno that basically have adopted some of the language and basically said, "Bodney is still good law and here's some additional clarification for courts and anyone else who reads the law on how 19-9-3 should apply and how relocation issues should be dealt with."
Leh Meriwether: And that Woodson case, the most recent one, that was in May of 2018, that they specifically said, "There is no presumption that a relocating parent will lose custody nor a presumption in favor of relocation." The courts just ... that's the triggering event. The triggering event in Georgia and most states is a substantial change of circumstances, has there been a substantial change in circumstances that would merit a court looking at what's in the best interests of the children when it comes to parenting time. And so that relocation is that triggering event and then they look at the totality of the circumstances. But the overriding factor is what's in the best interests of the children and then that statute we started in the first segment and breaks down the 17 factors the court can consider. So let's talk about those for the context of a relocation case.
Todd Orston: Let's. So again the umbrella, it's what's in the best interest of a child. But what a court needs to do and will do is look at the statute and then start looking at those things that we were talking about. So basically in determining the best interest the court will look at things like love, affection, bonding and emotional ties existing between each parent and the child. Very plainly put, if mom has a wonderful loving caring relationship with the child and dad basically has not done anything to build up that relationship and the child clearly leans heavily on mom for daily needs and what have you and there's a closer tie between the child and the mom, the court's going to consider that. That's not where the analysis stops but in terms of that one, the court's going to say, "Okay, mom clearly has that stronger tie."
Leh Meriwether: Right. So ties existing between the child and his or her siblings which also includes step siblings and that sort of things. And I've even heard courts sort of expand this from not just siblings but like cousins and-
Todd Orston: Yeah. And that goes to extended family and things like that and oftentimes step siblings because if they've basically, usually-
Leh Meriwether: One parent's been remarried.
Todd Orston: Right. And there's another child born to the mom let's say so it's not their direct sibling.
Leh Meriwether: Half sibling.
Todd Orston: They're half siblings. But because there's a close relationship that's going to be considered. So usually if they are full siblings, courts want to keep children together. We do have situations, they're called split parenting, where one child would be with one parent, another child would be with the other parent. They are not very common. And usually there are some very specific facts or factors that are going on that the court's going to look at to even approve of something like that but-
Leh Meriwether: Yeah usually you see a big age gap.
Todd Orston: A big age gap and there's just big differences in terms of the interests and maybe the kids just don't get along. But that's not what we're talking about today.
Leh Meriwether: Right. So a lot of times though you'll see the parents that get to court usually both parents have a good bond with the child. That's part of the reason why they're going to court, they're like "Please don't leave." Because the non-custodial parent has a great bond. And one of the other factors, the knowledge and familiarity with the child, a lot of times you see that they're kind of on equal footing there. And I think I've heard judges say some of the toughest cases are when you have two really good parents.
Todd Orston: And without going into each one and going into all that, a full discussion on each one, I'm going to jump around just a little bit. Let's talk about the ability to provide for the needs of a child, that sort of comes up in a few of the factors. But you have to understand, here's the thing. It doesn't mean that if one parent can afford a mansion and the other one can live in an apartment that the mansion automatically wins. It's can you provide a good wholesome healthy environment for the child. And that's going to be of the utmost concern. And also can you provide for the needs monetarily. Can you put food on the table, can you put clothing on the child's back, shoes on the feet, those kinds of things. And just because one parent might be able to put nicer shoes or better food or whatever on the table doesn't mean that they automatically win custody. But it is a factor to make sure that you can provide.
Leh Meriwether: Another thing in conjunction with that is ... I had a point.
Todd Orston: Oh yeah. I mean that's in conjunction, I agree.
Leh Meriwether: I don't know why, I just literally had a complete brain fart.
Todd Orston: Yeah but look [inaudible 00:20:59] and I can smell it. The bottom line is just because you have more doesn't mean you win custody. But you do need to be able to provide minimums if you will. And also the court, and we went over this, the court is going to also look at the fact child support needs to be paid. So the court will consider that.
Leh Meriwether: And now I remember my point, sorry. So sometimes you have situations where the reason for the move is jobs. Somebody's been looking for a job, they can't get one. This was a big issue right after the Great Recession where people are having trouble finding jobs here in Atlanta but they found them in other states. And so that goes back to the ability to care for the child. And up next we're going to talk about some hypotheticals. We're going to talk about some situations that we have seen where they seemed kind of extreme but when you start hearing the other factors, the court when they evaluated the wisdom of the move they thought it was OK for the child to move with the other parent. So we'll talk about that up next.
Leh Meriwether: Welcome everyone. I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether and Tharp. And you're listening to Meriwether and Tharp radio on Te New Talk 106.7. If you want to check out [inaudible 00:22:34].
Todd Orston: Another brain fart. During the break I said, "I've got a can of Febreeze here and if I smell one more I'm spraying you." It's okay, take a deep breath. You need to meditate.
Leh Meriwether: I just was wondering, I know the call is New Talk 106.7 but if you haven't heard the news.
Todd Orston: I'm here for you. All right. You're in a safe place.
Leh Meriwether: Unfortunately our station's been sold. So when I started to say that I'm like is it really the New Talk 106.7 anymore, sorry.
Todd Orston: It's the new soon to be old.
Leh Meriwether: But we're gonna be here till the end. That's the plan for now. And so we're gonna be here till the end of May because I think it's 90 days or something like that. So in case you were listening and you'd heard about that 106.7 had been sold, just wanted to put that out there we're still gonna be here till the end.
Todd Orston: And we will find a new home and we will continue doing what we're doing.
Leh Meriwether: And we'll miss this station though.
Speaker 4: [inaudible 00:23:42]
Leh Meriwether: We'll miss Al.
Todd Orston: I was about to say not Al but. All right, are you done tripping over your own tongue? Can we talk about [inaudible 00:23:54]?
Leh Meriwether: Yes we can. All right.
Todd Orston: Fine.
Leh Meriwether: So all right. But when we left off we were talking about ... we're talking about relocation cases and how it applies to child custody. So years ago you couldn't do anything most of the time, if the primary custodial parent was leaving with your children there was nothing you could do. But thankfully in 2003 that changed because of some case law and now you can bring the action to a court to have them decide should the child stay here in Georgia or not.
Todd Orston: And let me be very clear. You could do something, you could modify the visitation schedule.
Leh Meriwether: Right. Yeah you could do that.
Todd Orston: There are things that obviously you could do. If you were supposed to get every other weekend and they're moving to Alaska and that's not practical, it's not going to happen, you could modify the visitation schedule and travel arrangements and things like that. What you wouldn't be able to do is win custody solely because the parent is leaving with the child. But now it's possible. I'm not saying it will happen. I'm not saying that that parent absolutely will not be allowed to leave. That's what we've been talking about, we've been talking about how the statute reads and how the courts, the appellate courts, have applied the statute in basically determining whether or not relocation would be in the best interests of a child.
Leh Meriwether: Right. All right. So let's get to some factors that we usually see. So one of the factors you often see was well you'll have a parent, a couple gets divorced and they're up here or maybe they weren't divorced, it's a legitimation case. But anyway you have two parents are up here in Atlanta and one of them is struggling, whatever it may be, because they originally are from Florida and all their friends, their entire family's down there so basically the child or children's grandparents and uncles and aunts and cousins are all down there and up here they may only have a few friends. So the custodial parent wants to move back to Florida. Well that's going to be a factor the court's going to look at because the extended family, the extended support.
Todd Orston: The support system right.
Leh Meriwether: The support system's one of the factors they look at and they're going to say "Well it's probably in the best interest", most of the time I see in those scenarios the courts unless there's other parenting issues because that's not the sole thing, there's 17 factors. But a lot of times that's a controlling factor. If there's nothing else negative.
Todd Orston: Right. And keep in mind the age of the child in a situation like that is going to play a big part. If you have a 13, 14, 15, 16 year old who has lived in Georgia and they have friends and maybe a girlfriend/boyfriend or whatever, everything that they know and love is here in Georgia, even though you have that extended family support system in Florida the court might say, "Yeah I get that. But you want to rip this child away from the entire social network that they've built here in Georgia." So again now you have these competing the factors as opposed to you have a 1 year old, 2 year old, 3 year old, 5, 6, 7, young, where friendships come and go and there might be a bigger benefit to being around the extended family and there aren't any strong friendships that anchor the child to Georgia.
Leh Meriwether: So and I'm gonna throw a wrinkle into that scenario too. These are so fact specific. So there was a case where the mom was moving to Alaska with the child. So that's a huge distance. The tickets were very expensive. But the child's social network and support system were here in Georgia. And so dad brought an action to keep the child here and was arguing the networks here and all this stuff but the biggest mistake he made was that he was way behind on child support, it may have been 10 or $20,000. I can't remember how far behind dad was but he was way behind on child support and the reason for the move was this was in the Great Recession, the unemployment was really high and somehow she found a job in Alaska that practically doubled her income. And I think the cost of living up there was less so the court in the case they heard the facts and allowed the move.
Todd Orston: Yeah. And that's a situation where but for the father in that situation, but for the father's non-compliance with other aspects of the custodial order, namely the payment of child support, the court may have done something different. The court may have said, "Look, it's too far. You're removing the child to basically literally across the country. Flights are expensive." The father won't be able to afford many trips. "So no I don't think that's going to be in the best interest of a child." But in that specific situation, we're going to go into some more tips and things to think about strategies if you will later on but in this one situation you're talking about, yeah, the court basically was like "Look sir, you can't complain about her moving for a good paying job at a time when good paying jobs are hard to come by when you're not even paying your child support." So the tip there is make sure that you are in compliance and you're paying child support because that can come back and bite you in ways you don't foresee.
Leh Meriwether: And I think there was a couple other factors. If I'm remembering correctly he was not actively engaged in the child's life, not that he wasn't engaged, he was exercising his parenting time but he didn't show up to all the extracurricular activities. So all those things, those factors all came into play and they overrode the support system that was here.
Todd Orston: So how about this. I had a case and in that situation the mother was the primary custodial parent and she remarried. The husband lived out of state and she notified the father that she was going to be taking the children with her because she was going to move with her new husband to that other state. And negotiations broke down. We ended up in front of a judge. Good for the mother. Mother was able to say, "I'm in a loving relationship. There are other children that my children be able to interact with. It's a good neighborhood. It's a good school system. There are a lot of positives." But the father came in and said, "Yeah well I get that but my finances are a little bit limited. I won't be able to exercise that much parenting time. I have a strong extended family support system here." And the court basically ruled against the mother. Luckily for the mom, the mom was given an opportunity which does not happen very often.
Leh Meriwether: No it doesn't.
Todd Orston: Where the court basically was like, "Ma'am are you sure you want to relocate?". Wink wink, nod nod, if you do I'm gonna be changing custody.
Leh Meriwether: You can relocate but the child's not.
Todd Orston: Yeah that's right. And legally on the stand, I mean not on the stand-
Leh Meriwether: From the bench.
Todd Orston: But from the bench, said "Are you sure?" And after a little bit of a talk with the attorney she decided no I'm not relocating any more and she was able to maintain primary custody.
Leh Meriwether: Yeah that doesn't happen very often. I've seen one too, very similar set of facts. The mom got remarried. Dad had a job in another state. And what was really rough was that most of the factors that if you were like giving a number score on 1 to 10 they were all scoring pretty well going down the line of the 17 factors and they came down to two elements and one really, co-parenting. And the court said, "Well the child's thriving in the current custodial arrangement with mom being the primary and there was a few situations where dad did not do a good job co-parenting". And actually the dad intentionally did not disclose an extracurricular activity to mom that the child was doing and mom was completely excluded, because he did that court said, "No, mom you can take the child to the other state." So your behavior today, how your co-parenting will have an impact if you get into a position where you're thinking about relocating later.
Todd Orston: Yeah. And it's a case by case. You have to understand there's so many factors. We read all those factors. There's so many factors that you have to understand. There's no bright line rule that you either are going to win or you're going to lose because the court's going to consider so many things when determining what's in the child's best interest.
Leh Meriwether: And up next we're going to talk about if that relocation's come upon you, some practical things to do off the bat and not waiting till it happens so that you can help work through that process as amicably as possible.
Leh Meriwether: Todd while we're on a break let's take a moment to speak just with our podcast listeners.
Todd Orston: Great idea Leh. First, thank you for listening. If you're a client of ours, thank you for taking the time to educate yourself. It really helps us help you.
Leh Meriwether: And I want to thank those that recently took a moment to review our podcast. We really appreciate it. If you feel like you're getting a value from the show please take a moment to post a review. The reviews help others find the show which allows us to help even more people.
Todd Orston: And if you're not sure how to post a review our Web masters put together a simple explanation on our Web page. You can find it at MTlawoffice.com/reviewit. That's M as in Mary, T as in Tom, lawoffic.com/reviewit.
Leh Meriwether: Welcome everyone. I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether and Tharp and you're listening to Meriwether and Tharp radio on The New Talk 106.7. If you want to read more about us you can always check us out online at atlantadivorceteam.com. Well today we've been talking about custody as it relates to relocation cases because that's becoming more and more frequent. We see situations where whether it's so easy to travel across the country that it is not uncommon for someone to be ... we see it in the military all the time but particularly you see it in situations with employment for large companies that are across multiple states, people are shifted, they get a promotion or they close a plant in one state and so the employee has to go work in another state. And when you've got two parents that aren't married anymore whether it's a divorce or whatnot, that creates a problem.
Todd Orston: It does.
Leh Meriwether: So we talked about the factors and now we're going to dig in to let's get practical.
Todd Orston: Yeah because again like we said there are so many factors that the court's going to consider that you can't say, "Well I'm going in and the court should only look at this one factor." The court's not going to do that. The court's going to consider all of the factors. So what we have to do is we can't say, "Improve on factor 1 and 2 and 3 and 4 and 5." There are just some general tips and strategies that you have to constantly be thinking about. First and foremost, I'm going to jump in, don't procrastinate. Procrastination is your enemy.
Leh Meriwether: And this is regardless of whether you're the staying parent or the moving parent.
Todd Orston: That's right. So let's say you are the moving parent. You do not want to wait and basically not give ample notice of your intention to move because then at that point you've taken steps, you have let's say gotten an apartment in a new city and taken a job and you've done all these things but what have you forgotten? Hmm. Oh yeah. You know what I didn't tell the other parents that I'm moving and I'm taking the children. And the court's going to look down on that kind of behavior and can impact whether or not you're going to be successful in court.
Todd Orston: And then the flipside is if you are the non-moving parent. The other parent notifies you that they are moving and you do nothing and it might be I've had people say, "I didn't do it because I was in shock." "I didn't do it because I didn't have the money to hire an attorney." "I didn't know what to do." But you don't do anything and usually an agreement will give somewhere around 60 days.
Leh Meriwether: 30 to 60 yeah.
Todd Orston: 30 to 60 days and sometimes I've seen longer but the standard is somewhere 30 to 60 day advance notice of an intention to move. And the 60 days runs and the other party moves and sometimes months go by and then all of a sudden they're like, "Okay I'm ready to do something." Well you might have waited too long because now at that point the courts like, "Well a lot of these factors; Do they have a support system, do they have friends, do they have this, do they have that. All of those things have changed. Now the children are settled and they are happy and they're getting along well." Oh and by the way the court's going to be reluctant to say, "Well you did nothing. And the other parent spent all this money, relocated and you did nothing, now you want me to yank the children back?" And the court might be, if not will be, reluctant to do it.
Leh Meriwether: So going back to the first scenario that if you're the moving parent. Well first off there's usually a court order regarding giving notice. So you don't want to delay on that. Number two you gave the other point was the court could look badly on it. Number three is a lot of counties here in Georgia, a lot of the states, they have a standing order. And the standing order says, "Neither parent", and I'm paraphrasing here because everyone's written a little bit differently. But "Neither parent shall leave the jurisdiction of the state unless there's a permission of the parties or the court."
Todd Orston: Right. The standing order applies during a pending case.
Leh Meriwether: Right. A custody case.
Todd Orston: Right.
Leh Meriwether: And so now there's been some judges that say "Well our standing order wasn't supposed to apply in a modification." But that's not what it says. So if you wait till the last minute and say, "All right. Oh by the way we're moving in three days. So we just want to give you notice." Well then the following day you get this order, you get served with an order that says, "You can't leave the state with the child." Now all of a sudden you may be stuck without a place, because I've seen this happen before, where the moving parent didn't have a place to stay here in Georgia but they were paying for an apartment in the other state. And if they left the state they'd be held in contempt of court. So they had to wait 45 days before they could get in front of a judge and so they lived out of a hotel on some couches and the court ultimately allowed them to move on a temporary basis but kept the jurisdiction to decide ultimately, I don't remember the outcome of that case. But the point is if you wait you can put yourself in serious financial trouble because if you have a caring parent the modification is inevitable. So let's just deal with it head on.
Todd Orston: Yeah and using that example, if mom has gave 60 days' notice let's say and the father waits until day 59 to file something and then goes to court. Well guess what? The standing order might say, "Mom you can't move" but mom might go to court and say, "Judge, I gave notice maybe even more than 60 days ago." Because that does often happen, rarely is it you're given the 60 days. Usually it's, "June I'm moving and it's January right now." And six months later you're now getting around to hiring an attorney and then you'll find yourself in court probably on some kind of a temporary or an emergency motion where the mother is saying, "I have done all of these things; I quit my job, I didn't get any objections, I quit my job, I gave up my house here, I did all of these things, I've gone back and forth with the child or children to look at neighborhoods and schools and what have you." The court might say, "I'm going to allow the move and we'll deal with custody. The case is pending and I'll decide whether or not that's going to be a permanent move."
Todd Orston: But guess what? That is not strategically speaking a position that you, the non-custodial parent, want to be in because status quo is very important to a judge. And if the judge allows the move at the beginning of the case there's a good chance the court's going to say, "I'm going to make this permanent."
Leh Meriwether: Yeah. So another thing to think about that if you're starting this, start putting together a parenting plan. If you've gotten notice that you're going to move, maybe you've just ... "Hey look, we need to transfer you to this other state to take over this plant" or whatever it may be. Well you need to give notice maybe not immediately, when I say immediately like that day, but think about what would a parenting plan look like. And reach out and make that proposal, say, "Hey look, this came up. I wish it didn't but I don't have a choice, I've got to move. And here's a proposed parenting plan for you to consider."
Todd Orston: Yeah I love that idea. I really do because it doesn't matter, I'm trying to be very careful how I say this, it doesn't matter what your personal feelings are about the other parent. You might get along famously. You might be able to co-parent very well together or you might not. And it may unfortunately be a very contentious relationship that you have with the other parent. But you are building evidence that you can use to support your request to move because now the court's going to look and see that you actually were very responsible in how you approached this. And not only did you put them on notice but then you said, "Hey I've given this some thought, maybe I'll drive half way. We can meet in this town for pickups and drop offs. I'll pay for a few of the flights, I'll do something to try and help." That way when you get in front of a judge the court looks at that and says, "You really did go the extra mile to be a good co-parent. You understood this is going to be difficult on the child and on the other parent and you tried to make some concessions."
Leh Meriwether: Yeah and you want to make sure that you're reaching out ahead of time. And talk about child support too. "Hey look, I've actually checked on flights." And be upfront. So if there's a few days delay you don't want them to go, "Oh you were planning this, you didn't tell me right away." Say "Hey look, I got notice on Monday. For the next two days I thought about what this might look like. I put together a proposal. Let me know your thoughts. Let's try to sit down and have a conversation about it."
Todd Orston: And it may be rejected. I mean you may say, "Okay"-
Leh Meriwether: But you start the conversation.
Todd Orston: Yeah and you may know in your heart of hearts that the other parent is going to reject it, is going to be angry, you name the emotion that's what they're going to be. But it doesn't matter because now A) you're taking the high road and B) you're creating some good evidence for yourselves so that when the time comes the judge will say, "I think you acted in a very good honest upfront kind of way." And that might result in you getting a favorable ruling from the court.
Leh Meriwether: Yeah another thing to consider too is when you make that proposal plan on giving up most of your summer. If you're moving away with the child or children plan on giving most of the summer to the other parent, plan on giving up probably all three day weekends on the school calendar, probably like in your proposal you might want to consider giving them every spring break, like not necessarily alternating that. So look on the calendar, see when the breaks are, try to arrange something. Because at this point this is all about your children and making sure they get to see the other parent with a great deal of frequency because this is a rough move on a lot of kids. And the more you do to co-parent and reduce that the better off it's for your kids. And if you can avoid litigation, great. If not you're setting yourself up for success in court.
Leh Meriwether: Well unfortunately we have run out of time again. There's actually a few more things I'd like to talk about on this but we're out of time. So if you're really enjoying the show, thanks so much for listening. And we'd love to get a five star review.
Speaker 3: This audio program does not establish an attorney client relationship with Meriwether and Tharp.