Question: My ex wife and I have joint legal custody of our 8-year-old daughter, but she is the custodial parent. Last year my ex re-married someone who is in the Army. They just had their own child one month ago. 

When my ex was pregnant, she quit her job and soon after her new husband was laid off of work. He now wants to go to school through the reserves to become an Amy Reserve recruiter. They just told me a couple of weeks ago they would be moving out of state with my daughter when they find out where they would be going. She filed a petition in court even though they have no specific place they are moving just yet. 

What are the chances of her being allowed to move? Since her new husband is trying to better the quality of life for his new family, I am concerned the court may allow a move. Does my relationship with my daughter outweigh my ex's new husband from what he wants to do?

Answer:

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 states 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 daughter’s attachment to you, of course. However, they also include all other facts relevant to your daughter’s best interests – prospective homes, likelihood for parenting time despite the move, attachment to friends and relatives, schools, and so forth. If your ex’s husband’s army status has them moving about the country, or the world, multiple times a year, and you and your ex are equal on all other factors, a court may favor you and deny the move. If the move has a tangible benefit (such as a nicer home or better schools) and your daughter is attached to her mother, a court may favor the move. An experienced family law attorney will know how to advocate on your behalf.

Keep in mind that I am a Michigan attorney and cannot give you detailed advice about the laws in Pennsylvania. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately for additional information and adequate legal representation. Cordell & Cordell has attorneys licensed and located in Pennsylvania.  

Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. 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.