|
|
Examiner
  • Ken Garten: Courts dimly view relocating children of divorce 

    • email print
  • Prior to 1998, a divorced co-parent of a minor child was not allowed to move the residence of the child to another state without permission of the other parent or a court order, and doing so would be a basis to seek a change of custody.
    The effect of this was that a five mile move from Kansas City to Leawood could give rise to a motion to change custody, but the law made no such provision for a 500 mile move from Kansas City to the Missouri Bootheel.
    In 1998, the legislature changed the law to provide that any move of the principal residence of a child, regardless of distance, requires at least 60 days written notice to the other parent, by certified mail, with detailed information including the date and place of the proposed move, the reasons, and a proposal as to the revised schedule of custody or visitation.
    Failure to provide the notice constitutes a basis for the court to consider a modification of custody and visitation, to order a return of the child, and to assess attorney fees to the violating party.
    If notice of relocation is properly given, then the parent receiving the notice must file a motion with the court objecting to the relocation within 30 days of receiving the notice or is deemed to have consented to the relocation. Our courts have held that this is a firm deadline, and a parent who fails to object by filing a motion with the court within 30 days effectively gives up his or her right to prevent the relocation or seek other relief as a result.
    If a motion objecting to relocation is filed with the court, then a case is opened wherein the court will hear the evidence and determine if, and on what terms, relocation might be permitted, or not. The relocating party has the burden of proving that the proposed move is being made in good faith, and is in the best interest of the child.
    There was a time when the prevailing attitude of the courts tended to be that custodial parents of minor children, usually mothers, had the practical freedom to relocate as they saw fit, and non-custodial parents, usually fathers, often had little to say about it.
    But in recent times, that trend has changed, and the legal environment today is geared toward providing both parents the opportunity to be involved in the day-to-day lives of children of divorce, with shared decision-making, shared access to information, and equal right to involvement in the children's lives and activities.
    This environment also means that relocating a child away from one parent by another is in great disfavor, and courts these days tend to be generally disinclined to permit a parent to relocate the primary residence of a child to a place that obstructs that day-to-day opportunity of an involved co-parent.
    Page 2 of 2 - But, forget not my admonition above, in order to object, a parent must file a motion with the court within the 30 day deadline, or be deemed to consent to the relocation, and effectively lose any further right to complain.
    Ken Garten is a Blue Springs attorney. Email him at krgarten@yahoo.com
      • calendar