How much control does he have over where I live?
“Control” is a common theme in divorce and custody cases. The truth is, though, that if you and your soon to be ex husband have children in common, there are often a lot of strings attached, though you may be surprised to find that it’s not your husband pulling the strings – it’s the court. It’s also not you that the courts have any authority over, it’s the children.
After the divorce, you and your husband are legal strangers. He doesn’t have any control over you (except to compel you to do whatever the court ordered you to do) and vice versa.
But that doesn’t mean that you’re free to live the way you would have or could have in the event that you didn’t marry him and have his children. The reality is that now the court has a say in what happens, and that the court will apply the “best interests of the child” standards to any decision it makes.
What does best interests of the child mean?
It’s kind of complicated, but best interests is a set of ten factors that the court must weigh in order to render a decision on custody and visitation. There aren’t a lot of hard and fast rules, but generally speaking the court finds that the most important thing is for a child to have access to both parents.
Courts are also required to weigh all the custodial arrangements equally. What that really means is that shared physical custody (a type of custodial arrangement where the non custodial parent – the parent who has the children less – has 90 or more days with the child in a calendar year) is considered on equal footing with primary physical custody (an arrangement where the noncustodial parent has 89 or fewer days).
Dads love shared physical custody because it means a reduction in child support under the statute. Okay, maybe I’m being a bit cynical – maybe they also genuinely want to spend the time with their children. But there’s no question that after that 90 day threshold is met, child support declines – and I’ve seen a lot of dads and their attorneys furiously counting and calculating days before they agree or disagree with a proposed visitation schedule.
Isn’t there a presumption in favor of moms?
No. Though that may have been the case years ago (and, really, I can’t say that with authority since I wasn’t practicing thirty years ago), it’s not the case now. Moms and dads are viewed on relatively equal footing. The things that make a difference are less things like gender and income, and more things like work schedules (especially if one of you travels a lot or is deployable) and willingness to coparent.
It’s not true that moms always win – but, on the other side of the coin, it’s also not true that dads always win, or that you’re doomed or whatever.
Certain other factors – like the special needs of a child, breastfeeding, homeschooling, or whatever can also impact a judge’s decision in a case. But, for the most part, the court is looking very carefully at what kind of arrangement will allow both parents to stay involved in the child’s life to as significant a degree as possible.
Can I move away with my child?
Well, that depends. Mostly, it depends on how far you want to move and whether you could continue your current custody and visitation agreement if you did. Keep in mind, too, that sometimes the relocating parent has to bear the cost or time involved with transporting the child back and forth.
I get it, though. You don’t want to be stuck somewhere that you don’t have a lot of support, where you can’t earn as good of an income, where cost of living is too high, or where the schools aren’t as good. I’m not here to tell you “yes, you can” or “no, you can’t,” but only to give you the information you need to start to weigh the pros and cons yourself.
The way I see it, you have three options:
1. Stay put. There’s less litigation (and therefore expense) involved, and you can continue your same custody and visitation – or even petition/reach an agreement to modify it, but without making the distance between you and the child’s father a greater obstacle than it already is.
2. File, and ask the court for permission to move.
3. Move, and see if your child’s father files – and ask for forgiveness.
The law doesn’t specifically define a relocation or what constitutes one, and it also doesn’t specifically prescribe what a judge would rule in a particular case. I don’t have guidelines to give you, like that it’s okay to move an hour away, but that two hours is no longer acceptable. It’s not that hard and fast.
Technically, if you do move away and you refuse to move back, that COULD warrant the judge ordering primary physical custody to the other parent. I wouldn’t recommend doing that – if the judge says you have to come back, you should almost certainly come back.
Every judge and every court is different, so it’s a good idea to talk to an attorney in your area about what he or she thinks would likely happen if your case (given your specific facts, your desired location for the move, etc) were to go in front of a judge.
Relocation cases are super tricky, but I do want to reiterate that it’s not because he has control over your life. It’s because the court has authority over your children’s lives, and because the court wants to see two parents be able to be involved in their children’s lives.
It’s complicated, so you’ll definitely want to ask specific questions to someone who appears often in the courts in your area. Feel free to give our office a call at 757-425-5200 to talk to a licensed and experienced Virginia divorce and custody attorney practicing in Hampton Roads.