Family Law, Relocation

[ApRhys]

I currently live in Niagara Falls, NY with my 4 year old twins and I am trying to relocate to Scranton, PA to be closer to my family.  This move would allow a stable consistent day care for my children, safer living environment, better school, economic improvment and emotional stability for me and my family. I have had many hardships for the last 4 years being a single mom. Their dad pays child support, we have a history of domestic violence and he is inconsistent with his visitation and he's not taking his court ordered visitation. He refuses to communicate with me for my children and refuses almost all unscheduled visitations offered. He is a correctional officer and currently works only 1 hours and 45 minutes away from where I wish to relocate to. He claims he will be closer to buffalo soon, but still refuses to help me in anyway. In addition to that he REFUSES to let me relocate. I filed my petition to Niagara county court on Monday and I will need to ask for a Public defender because i cannot afford a lawyer. I have printed all exchanged emails, printed city searches, found a full-time job in my field, printed reports on their new school,  will retunr to my former church and I am willing to drive half way to accommodate visitation children's schedule. Also I am open to extending his schedule too. Please provide me with any information that will help my case.  I have found Topea v Topea and Browner v. Kenward.  Any guidance or direction would greatly be appreciated.  thank you very much for your time!

[Evarado]

Nichole:

DISCLAIMER:

I AM NOT A LAWYER or ATTORNEY. I am someone who has experience with family law issues, and am sharing my OPINION only. For the exact law as it pertains to your specific case contact a Professional Attorney in your area/county.

First I will be perfectly clear about the laws in USA concerning primary custody of said children: You cannot relocated without filing the proper paperwork which notifies father of your intention of relocation.

I recommend that you hire a Professional Attorney: Most Attorneys offer 1/2 free consultation to discuss the case and payment options: Most of the time they work with you to ensure the other party pays for the Attorney fees.

Then work with the Attorney to file the following similar type papers:

- Relocation notification

- Modified parenting plan which includes proposed modified visitation schedule.

- modified child support schedule

Here is some information on Relocation:

There are a lot of issues concerning moving a child out of State.  Many States are adopting new laws to prevent Parents move out of State for the child sake.

Most require that the parent seeking permission to move the child demonstrate that the move would advance the child’s best interest.

Not unlike the present law, the new law provides that a parent cannot relocate out of the state with a minor child unless that parent has:

1. consent of the other parent, if that parent has been given parenting time by an order or decree; or

2. an order of the court allowing the relocation. As a result, it is incumbent upon the parent seeking to relocate out-of-state to file a motion and acquire an order allowing that relocation before doing so. A failure to follow this procedure creates a serious risk that the dissenting parent may seek an ex parte order changing custody immediately pending a hearing on the relocation issue. When the matter is considered by the court, a judge may not allow the relocation if it is demonstrated that the purpose of the move is to interfere with parenting time that has been given to the other parent by a decree or order. In the past, when determining whether to allow a parent to relocate with the child, there was a presumption in favor of maintaining the present custodial arrangement. In other words, the custodial parent had significant advantage in court when seeking to relocate, with a legal presumption in his/her favor. As a direct result, in most cases the relocation was allowed. This presumption and advantage no longer exist under the new law. The end result is that it will be far more difficult for a parent to relocate out-of-state and away from the other parent with a minor child. Under the new laws, such move-away determinations are made based on what is in the best interests of the child. The factors the court must consider in determining the child’s best interests include, but are not limited to: 1. the nature, quality, extent of involvement, and duration of the child's relationship with the person proposing to relocate and with the non-relocating person, siblings, and other significant persons in the child's life; 2. the age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration special needs of the child;  

3. the feasibility of preserving the relationship between the non-relocating person and the child through suitable parenting time arrangements, considering the logistics and financial circumstances of the parties;  

4. the child's preference, taking into consideration the age and maturity of the child;  

5. whether there is an established pattern of conduct of the person seeking the relocation to either promote or thwart the relationship of the child and the non-relocating person;  

6. whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including, but not limited to, financial or emotional benefit or educational opportunity; 7. the reasons of each person for seeking or opposing the relocation; and 8. the effect on the safety and welfare of the child, or of the parent requesting to move the child's residence, or evidence of domestic abuse, as defined in section 518B.01. It is critical to note that the new laws places the burden of proof on the parent requesting to move the residence of the child to another state, except that if the court finds that the person requesting permission to move has been a victim of domestic abuse by the other parent, the burden of proof is upon the parent opposing the move. ========= End

Now the good news you mentioned that it creates a win/win for Dad and Mom by bringing the kids closer. I recommend that you keep a logbook of everything recording time/dates/events in which Dad does not spend time doing: For example, you stated visitation issues note those down in the diary/log book and use this when you go to court.

WORK with Dad on this issue and be as flexible as possible which you have indicated something to that effect, good start.

BURDEN OF PROOF.--The parent or other person wishing to relocate has the burden of proof if an objection is filed and must then initiate a proceeding seeking court permission for relocation. The initial burden is on the parent or person wishing to relocate to prove by a preponderance of the evidence that relocation is in the best interest of the child. If that burden of proof is met, the burden shifts to the non-relocating parent or other person to show by a preponderance of the evidence that the proposed relocation is not in the best interest of the child. I don't have any specific cases for you to use because they vary and really have no value add: What adds value is your ability to prove to the courts that the move is in the best interest of the children.

Seek out a Professional Attorney for further assistance.

Kind Regards,

Jeff