One of the hardest issues to resolve after a divorce is what happens to the children when a custodial parent wants to, or has to, move? The courts are left in the position of having to decide between the fundamental right of an American to live wherever they choose with the rights of the children and of the ex-spouse to be near the children.
The La-Legal Family Law Forum has several threads dealing with the issue of moving out of state after a divorce or even during the divorce process. Take a look at the issue from the perspective of people who are actually facing the problem at our Family Law Forum and then search on the topics "move" or "moving."
In a recent Louisiana case, the conflicting rights of parents and children were spelled out together with a discussion as to how to arrive at a decision. It has to be admitted that there is no "solution" in these cases. That is, no matter what decision is made there will still be a negative impact on at least one of the parties. However, the Louisiana courts have at least come to some conclusions as to how the problem should be approached.
Children on the move after a divorce in LouisianaIn Hodges v. Hodges (827 So.2d 1271) decided in October of 2002, the court was faced with deciding how to handle the petition of a divorced father ("Dan") who wanted to move from Louisiana to Virginia with his children. The trial court denied his request which meant he would either have to move without the children or stay in Louisiana. In fact, the children had spent much of their time in Virginia and that is where the father's job was. There were many other factual issues in the case, including the mental stability of the mother ("Lily") and, apparently, a great deal of acrimony between the mother and father.
The Third Circuit Court of Appeals reversed the trial court and found that the father should have been allowed to move to Virginia with the children. One of the important features of this case is the way it spells out the existing law in Louisiana and the way the law should be applied. The court said:
This state's "relocation statute" requires a parent with primary custody to give notice to the non-domiciliary parent of the intent to relocate the primary residence of the minor child within their care. The non-domiciliary parent who is given adequate notice then has the opportunity to initiate a hearing wherein he or she can set before the court any objection to the relocation.
The relocating parent has the burden of proving: 1) the proposed relocation is in good faith; and 2) it is in the best interest of the child. La.R.S. 9:355.13. La.R.S. 9:355.12 sets forth the factors a court shall consider when determining a relocation issue. These factors are:
(1) The nature, quality, extent of involvement, and duration of the child's relationship with the parent proposing to relocate and with the non-relocating parent, 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 any special needs of the child.
(3) The feasibility of preserving the relationship between the non-relocating parent and the child through suitable visitation 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 parent seeking the relocation, either to promote or thwart the relationship of the child and the non-relocating party.
(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 parent for seeking or opposing the relocation.
(8) Any other factors affecting the best interest of the child.
It is evident from our review of the record that Dan carried his burden of proof in both establishing that this proposed relocation is in good faith and that it is in the best interest of the children.
In this particular case, it was found that the trial judge did not properly analyze the facts from the perspective of 1) good faith, and 2) whether the move was in the best interest of the children. Once these two factor are determined, then the considerations contained in paragraphs (1) through (8) should be addressed. In Hodges, the appeals court then found from the evidence and testimony that each of the factors favored the father's petition to relocate.
As an example, when discussing factor (5) as to the conduct of the parties, the court said:
With regard to factor five, it is clear that Dan has attempted to cooperate with visitation. It is equally clear that Lily has been uncooperative and worked at thwarting visitation and has punished the children for her perception that they side with their father. Lily has assigned as error the trial court's determination that Dan is the parent most likely to encourage and continue the children's relationship with the other parent. As noted above, the record supports the trial court's determination.
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