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Planning to move out of state? Your current custody situation matters

According to a recent ruling from a New Jersey family court, your current custody arrangement can make a big difference if you’re thinking of relocating to another state with your child.

The mother in that case had emigrated from Cuba in 1999 and lived in Florida until 2004, when she moved to New Jersey to work in pharmaceuticals. That’s apparently where she met her husband, who she married in 2009 and with whom she had a daughter.

The couple divorced in 2015. The divorce agreement said they’d share joint legal custody and the mother would be considered the “parent of primary residence.” Once the mother vacated the marital home, the father would be the “parent of alternate residence.” The father was to have the daughter on Mondays, Wednesdays and alternate weekends. The agreement didn’t discuss the issue of out-of-state relocation.

The mother didn’t leave the marital home for a year. During that time, the mother, the father and the daughter lived together as a family unit and the mother and father continued to share in parenting responsibilities. Once the mother left the marital home, the father still had daily contact with the daughter, since he worked from home and had the ability to pick her up from activities and take care of her during the day.

A month after the mother moved out, she traveled to Cuba and Florida for three weeks with her daughter. After that, she decided she wanted to move back to Florida and bring the daughter with her. At this point, she invoked the parenting-time provisions in the divorce agreement and only let the father see his daughter twice a week and on alternate weekends.

The father challenged her request to relocate with his daughter.  The mother argued that as the parent with “primary physical custody” in the divorce agreement she should be able to bring the child with her. But the family court denied her request, finding that in reality they shared physical custody. The court also decided that there was no way the relocation could take place without seriously harming the child, particularly since the mother didn’t present a realistic plan that would allow the father to maintain the significant relationship he had with his daughter.

The lesson here is that if you expect to rely on the specific language of your divorce agreement to work in your favor when later issues arise, it helps if you live up to that language in practice. Of course, the law differs from state to state, so be sure to check with an attorney where you live.

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