I was watching one of the new seasons television shows the other night. “Lie to Me” is one of those fast paced, science based, programs that I find irresistible. I also have a hard time leaving my work at the office.
Why? Seems that the protagonist on the program is divorced. He and his ex have one child that appears to be a teenager. The mother wants to start a new business – a law practice! – out-of-state. She simply tells her ex, the father of the child, that she is taking their daughter with her.
Before I answer this question let me make just one change in the scenario (this is, after all, MY blog:) – let’s assume that the child is in grade school and not a teenager who would have more say in the matter. So, can a custodial parent simply tell the other parent that he/she is taking the child to live in another state?
At least not without the courts approval. Unless a separation agreement states terms otherwise, one parent cannot make up the terms of the parenting plan on their own.
There are circumstances under which a court will allow the custodial parent to move away. However, without a showing that the move is justified, the court will not allow it.
The moving party has a two pronged burden of, (1) proving a good faith reason for the move, and (2) that the move will not harm the child. So if one parent wants to take the child out of state he/she should also have a plan for visitation. This is a prima facie case: that is, evidence, if un-rebutted, would sustain a judgment in proponents favor. In our “Lie to Me” scenario, the mother would have to tell the court why this is a good idea. However, the burden then shifts to the other parent to produce evidence, not just that visitation will change, but that the change will negatively affect the child. If the father, in our scenario, does not produce this evidence or, worse yet, doesn’t show up for the hearing, the court will rule that the custodial parent may take the child to a distant state.
These are always highly charged issues where the emotions of the parents can interfere with a clear-eyed evaluation of the needs of the child. In ALL cases, what each parent and the attorneys representing those parents MUST keep in mind is simply this: the best interests of the child must always be the primary focus and consideration of any and all actions taken and or contemplated by the parents!