Ex Wants to Move Child to Another State

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By Dear Esq.
Feb 3, 2005, 11:18

Summary: I am in Albuquerque, NM, and facing a relocation mediation situation sometime in October. From what I get from my lawyer, there is a “heavy burden of proof” on my ex and her husband of three weeks to show “compelling reason” for them to relocate my son to the Milwaukee area.

Dear Esq.,

I am in Albuquerque, NM, and facing a relocation mediation situation sometime in October. From what I get from my lawyer, there is a “heavy burden of proof” on my ex and her husband of three weeks to show “compelling reason” for them to relocate my son to the Milwaukee area.

From what I can tell, there just is no compelling reason. The guy is making a lateral move to an almost identical situation. I checked with one of his colleagues, and there have been no budget cuts, layoffs, etc.- the colleague just said he was “unhappy”.

Ex does not seem to understand the concept of “compelling reason”. She is addressing everything but the idea, under the apparent influence of the idea of “mother’s privilege”.

The divorce was final right about 13 months ago.In May of this year I did a procedurally correct request for consideration of primary custody (under the dispute resolution process stipulated in the decree, not as high as the courts) and ex has apparently completely ignored that.

I suggested that I be allowed to have my son for the school year, and that she have him for the summer, but, again, it was all just ignored.

There is a stipulation about crossing state lines with only express written permission, there is a stipulation about distance that translates into “no more than a 30-minute drive” for me – ex knew full well that these stipulations were designed to foreclose on the issue of son being relocated when she signed the MSA.

On July 5, ex and not-yet-hubby notified me verbally (not in accordance with dispute resolution) of intent to relocate. My lawyer answered immediately with a motion to enforce stipulations. Seventeen days later my attorney decided it was time to notify ex that she needed to submit her proposal in writing (which is what the dispute resolution process says) so that ex would not be able to say that she “presumed” that I agreed and waltz away with my son. The first session of mediation is sometime in October. I think relocation is totally inconsistent with the original stipulations, and totally inconsistent with the spirit (and apparently the letter) of New Mexico law.

I certainly would appreciate your opinion this in the context of the current state of relocation issues. (I know that I am in New Mexico and should probably “tough it out” because things are a lot tougher in California.)

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Signed,

Dad in New Mexico

Dear Dad,

Your situation is somewhat unique, because, as you mention, many of these move-away issues are explicitly dealt with in your Marital Settlement Agreement (“MSA”). Was your MSA incorporated as part of your divorce decree? If so, it should have the weight of a court order, meaning that your ex may now be in contempt of court. That can often be a powerful leverage, if it is available to you.

In some states, including California, as you note, the custodial parent can move away with the child for any reason, or, indeed, for no reason at all. If your attorney says that is not the case in New Mexico, then you are indeed ahead of the game.

Still, be prepared to provide, in reasonable and rational tone, all of the reasons why both it is in your child’s best interest to stay in New Mexico, as well as all of the reasons that it would be deterimental for your child to be moved away. It is critical that you don’t belittle your ex or her new husband at all – this will get you nowhere, and can actually backfire and hurt your case.

As part of your case, you should also appear to the court to bend over backwards to help accomodate your ex’ desire to move. Offer things like continuing to pay some child support even if your son stays with you for the school year, offering to pay all transportation to effect her time with him, etc..

This demonstrates several things to the court, including that you really are trying to do what is best for your child, that you are the parent who will help ensure that your son has a good relationship with both parents, no matter who lives where, and that your desire to have him live with you is not motivated by a desire to “save money” by not paying child support. It also will serve to end-run any such claims which your ex’ attorney might otherwise try to make about you.

Also, start collecting affidavits from people who know you and your son in a professional capacity, such as teachers, clergy, day-care providers, etc., and have them describe the close nature of your relationship and how tied to the community your son is.

Finally, do your level best to negotiate an agreement between the two of you (and your attorneys, if necessary). It is almost always the path to a best outcome for all involved, especially the children, and if you are unable to arrive at an agreement you want to be able to show to the court that you really tried to reach an agreement with your ex, but she was unwilling.

Good luck!

DEsq.