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Divorce Advice for Men | Fathers' Rights Divorce | Child Custody

Providing men with essential divorce advice, fathers' rights divorce information and child custody articles. Dads Divorce is a community for men facing divorce or fathers' rights issues and run by Cordell and Cordell. Cordell & Cordell is a family law firm with a focus on men's divorce, child custody and fathers' rights divorce.
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By Jennifer Paine

Attorney, Cordell & Cordell

A frequently asked divorce question we receive through our Ask a Divorce Lawyer feature deals with the ex-wife wanting to move away with her boyfriend or new husband and take the children with her.

Divorced dads want to know if such a request is usually granted as it would make sharing child custody nearly impossible and severely hurt chances of regular visitation.

So will an ex-spouse be allowed to move away with the children post-divorce?

As you probably know from your first experience with divorce, the standard for rendering a custody decision is usually the "best interests of the child" standard. The same is true for decisions to modify the first final order.

State statutes and case law define this standard differently, but there are certain factors and/or themes that appear in the majority of states.

For example, in Michigan, where I practice, family courts must consider the following factors:

(a) The love, affection, and other emotional ties existing between the parties involved and the child.

(b) The capacity and disposition of the parties involved to give the child love, affection and guidance and to continue the education and raising of the child in his or her religion or creed, if any.

(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care. . . .

(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

(e) The permanence . . . of the existing or proposed home or homes.

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties involved.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.

(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent of the child and parents.

(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

(l) Any other factor considered by the court to be relevant 

You will find the same or similar factors in most states.

Most states also have specific statutes for interstate change of domicile (i.e., a request to move a child to a new state). The statutes echo and incorporate the best interest of the child standard but also look to other factors, such as the reasons for the move and the projected benefits or the move. 

One common factor is the "environment" factor. Courts strive for stability for children; that is, they rarely render custody decisions that remove children from established custodial environments. The parent residing in the environment usually receives more custodial time.

The outcome of your case will depend on the facts unique to it. These facts include your child’s attachment to you, of course. However, they also include all other facts relevant to your child’s best interests – prospective homes, likelihood for parenting time despite the move, attachment to friends and relatives, schools, and so forth.

An experienced family law attorney will know how to advocate on your behalf.

Cordell & Cordell has men's divorce lawyers located across the country should you seek legal assistance.

 

Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims.

Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.


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written by mary adams, April 07, 2011
my fiance johnny raffield jr got divorced in december 2009 him and his ex wife has an court oder that he is supposed to get his daughter every other weekkend he don't his ex moved out of state with her. a month ago was the first time he saw her since last july and he only had her for 5 days this time. he pays child support so he should see her every other weekend.
dadsdivorce
Enforcing Parenting Time Agreements
written by mallen, April 07, 2011
In addition to consulting a lawyer in your area for a thorough review of your case and the laws applicable to it, consider these options:

Informal Court Enforcement: Research the resources in your area for parenting time and custody enforcement. Many states do not require a court motion before a judge to enforce court orders. Other resources, such as parenting time monitors, counselors, and custody mediators, exist.

In Michigan, for example where I practice, parents who have missed visitation with their children may file a complaint to request make up time within 56 days of the missed visit. A parenting time counselor will review the complaint and issue an opinion in writing to both parents within 21 days. You should consult with a lawyer to learn about the resources available to you.

Contempt: If your ex simply refuses to follow your court’s order, consider filing a motion to have your judge hold her in contempt for disobedience.

The judge will order her to comply, perhaps with make up parenting time, and you will create a record of your denied time in the event you need to modify the order later. The procedures for these motions vary by jurisdiction.

Motion to Modify: If your ex purposely denies your time, if your child is unhappy or if you suspect something about your current order just does not "work" and a change would be better, consider filing a motion to modify physical custody or parenting time. The standards vary by state.

In general, your unhappiness with the order is not enough; you must show a proper cause or change in circumstances since the last order to justify the change. Some states require a higher burden if you are not a joint physical custodian.

These motions generally require more time, in and out of court, than the resources mentioned above and thorough preparation. The long-term benefits could be worth the effort, however, if you are legitimately unsatisfied.

You must have a lawyer’s assistance for this motion. Do not pinch pennies here. You need a realistic viewpoint if you are going to invest money, time and emotions for a motion.

Document: Be sure to document when you will exercise parenting time and what happens if parenting time goes awry. Confirm the dates you intend to exercise parenting time in writing. Include contact information where you and your children can be reached in the event of a last-minute schedule change.

Keep a journal to document your concerns – Was your ex-late for pick up or drop off? Were your children hungry? Were they dressed appropriately? How did the exchange go? This is somewhat therapeutic, and it will also refresh your memory when discussing your case with a lawyer and if you need to testify in the future.

Be precise and professional, and avoid any nasty naming calling – writings from you may be admissible in court as substantive evidence or for impeachment.

Cordell & Cordell has men's divorce lawyers nationwide should you seek additional legal advice or representation.

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