PUBLISHERS NOTE: Looking back over the last 10 years of Ohio Family Law Blog articles is always fun for me! Here is another BLAST FROM THE PAST written by Attorney Anne Shale and published on January 21, 2008. I have edited it to include the current relocation language from Montgomery and Greene Counties.
Divorced And Thinking About Relocation? Read This Before Taking Any Action!
Twenty to thirty years ago, there was no issue related to “relocation”. There was a custodial parent, usually the Mother, and a non-custodial parent, usually the Father. If Mother wanted to relocate to return to the home of her family, to join her new husband at his next assignment, or to find a better paying employment position, Mother simply relocated or moved to her next city or state of residence.
Today, the issue of “relocation” has become an issue of much importance. Fathers’ rights have come to the forefront as Fathers have become more involved in the rearing of their children. My father never changed a diaper, never bathed or dressed me or my siblings, and certainly was not involved in other parenting tasks involving “hands on” care. His primary “job” as husband and father was to be the breadwinner for the family.
Many Fathers of today do share in the parenting responsibilities of their children and some Fathers have actually been designated as the primary caregivers of their children. Recall Dustin Hoffman in Kramer vs. Kramer. Thus, if a Mother decides she wants to move or relocate to another city or state, the affected Father may take an adversarial position and argue that this relocation is not in the best interests of the child or children or in his best interests.
For purposes of this article, I am going to assume that Mother wants to relocate in order to establish her home and/or her business at a new place or location. If you are that Mother, you will need to examine and identify why you are seeking to relocate in order to explain or clarify the reasons or rationale for the proposed change in residence.
Here is a listing of some “reasonable” rationale for relocation of one’s person and minor children:
- Change of employment or loss of job “here” and opportunity to work “there”.
- Remarriage to spouse living in another city or state.
- Desire to be closer to your parents and/or your siblings for financial and/or emotional support
- Change in your health or your child’s health causing you to be need of particular health resources, or particular climate, or to be closer to relatives who could assist you with your care or that of your child.
- Desire to move from a deteriorating neighborhood with deteriorating schools to enjoy a higher level of safety and a better educational climate for your child or children.
And, here is a shorter list of some “unreasonable” and/or “unpopular” rationale for relocation of one’s person and minor children:
- Desire to alienate your children from their Father and to remove him from their lives and activities.
- Desire to be with a new “significant other” without recognizing potential negative consequences for the children in your quest to relocate.
- Desire to “pay back” Father for his leaving and hurting you so you decide to relocate with no particular purpose but to “get even” with the Father of your child or children.
At this juncture, I need to back up and discuss/determine your status as that will have some bearing on the outcome of your case for relocation. I’ll cite four different circumstances:
- This is a post-Decree matter – Your marriage has been terminated by divorce or dissolution. You must find and examine your Final Decree of Divorce or Dissolution and study its provisions. Was the issue of “Relocation” addressed in the terms of your Final Decree or Separation Agreement? If “Relocation” was addressed by the terms of your pleadings, you must follow the procedure mandated by the pleadings.
For example, if your Decree states that you must give notice to the Court and to Father of your intent to relocate, you must follow that procedure.
As a further example, the following language is now mandatory language in pleadings filed in Montgomery County, Ohio:
Local Rule 4.24(H)
Neither parent shall relocate the children out of state without first obtaining a modified non-residential parenting time order. The parties may submit an agreed order modifying parenting time, with a provision for allocation of transportation expenses, to the court for adoption by the court as an order. If the parents are unable to agree, the moving parent shall, prior to relocation, 1) file a motion asking the court to modify the parenting time schedule, 2) set a hearing, and 3) obtain a modified parenting time order. No continuances of the hearing will be granted without written permission of the assigned judge.
Another example is the mandatory language in pleadings filed in Greene County, Ohio:
Local Rule 6.4 – Notice of Intent to Relocate
Either parent must file a Notice of Intent thirty (30) days in advance if he or she intends to move to a residence other than the residence specified in the court Order. (Appendix J). This notice must be filed with the Court that issued the Order; The moving party and the Court shall send a copy of this notice to the other parent, UNLESS the parent has:
- previously been convicted or plead guilty to a violation of Ohio Revised Code 2919.25 involving a victim who, at the time of the offense, was a member of the family or household that is the subject of the current proceeding;
- has been convicted of an offense involving a victim who, at the time of the offense, was a member of the family or household that is the subject of the current proceeding and caused physical harm to the victim in the commission of the offense; or
- acted in a manner resulting in an adjudication that a child has been abused or neglected child.
Upon receipt of this notice, the court, on its own Motion or the Motion of the non-residential parent, may schedule a hearing with notice to both parents to determine whether it is in the best interest of the child to revise the parenting time schedule.
- This is a pending Divorce or Dissolution matter – Your marriage remains intact and you are negotiating a settlement with your spouse or you are bitterly engaged in a custody battle. In either case, you would want to advise your attorney of your desire to relocate and to discuss your reasons for seeking to move from this geographical area to another geographical area so that your counsel can address this issue with the Judge assigned to your case.
- You are not married to the child or children’s Father and paternity has not been established – This is probably the easiest case scenario as Father has no “standing” to contest your relocation as he has not been identified as the biological father of the child or children and there are no orders in place as to visitation, parenting time, or relocation. By the time he is able to establish paternity, you will probably have relocated to a new destination.
- You are not married to the child or children’s Father but their paternity has been established – You will then have to examine the pleadings associated with the establishment of paternity to determine if the issue of “Relocation” was addressed in any Decision of the Court or in any Agreed Entry.
Whether or not a Court will sanction or veto your plan to “relocate” with the children will depend upon many factors. Some of them are as follows:
- Each case will be decided upon the specific facts and/or merits of the case. Accordingly, it will be important for you and your counsel to emphasize the positive benefits of relocation.
- Each Judge may have a different philosophy regarding a proposed transfer or relocation. You will want to be aware of your Judge’s leaning or perspective before the commencement of expensive litigation.
- The level of involvement the Father of your child or children has with the child or children. If he fails to exercise visitation as set forth in your pleadings and if he fails to communicate with the children and/or fails to pay child support as ordered by the Court, you will be more likely to prevail with your plan to relocate. Likewise, if Father is very involved with the child or children and is truly engaged in spending quality time with your offspring, you can expect to have resistance to your plan to move to another community.
- The wishes and desires of the child or children if they are old enough to articulate how they feel about a proposed relocation. If your child is more than eight to ten years of age, you should consider asking the Court to conduct an “in camera” interview of your child. This means that the Magistrate or Judge would speak with your child in his or her chambers with no one present but for the Guardian ad Litem, if one has been appointed by the Court. It is expected that the child or children would be more comfortable discussing his or her wishes if neither parent was present and if neither counsel was present during the interview.
- The recommendations of the court-appointed Guardian ad Litem and/or the recommendations of the court-appointed psychologist. If you have sufficient financial resources, your attorney may suggest hiring a psychologist to evaluate the positive and negative aspects of your proposed relocation. That professional would then prepare a report for the court and be available to testify as an “expert witness” if the case proceeded to trial. A Guardian ad Litem is a less expensive alternative to having the involvement of a psychologist. Either or both professional persons would be expected to meet with the child or children alone, with each parent alone, and with each parent and the child or children together to gather information to be utilized in his/her report(s).
If you anticipate your plan to relocate is going to be opposed by the child’s Father, there are some ways to help “sweeten the deal”. For example, you could offer to assist him with transportation expenses or offer to meet at a half-way meeting point to exchange the child or children for visitation purposes. Some experts suggest that you should offer to Father the majority of summer vacation time, a week at Christmas, and each spring break to maximize Father’s parenting time with the children. Another suggestion would be to accept a lesser amount of child support so that Father would have more monies available to assist with transportation expenses.
As mentioned previously, it will be most important for you to ascertain whether or not the issue of relocation has been addressed in any pleadings or entries which have been filed with the court. If the issue of relocation has been addressed, it will be imperative for you to follow the procedures precisely so that the Court will be apprised of your respect for the Court.
Contact Us To Discuss Relocation And Parenting TIme Issues
This can be contentious post-decree litigation. If you find yourself in one of these situations and you were divorced in Southwest Ohio, please contact Holzfaster, Cecil, McKnight & Mues at (937) 293-2141. We will give you a candid assessment and talk strategy.
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Robert L. Mues
Robert Mues is the managing partner of Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues, and has received the highest rating from the Martindale-Hubbell Peer Review for Ethical Standards and Legal Ability. Mr. Mues is also a founding member of the "International Academy of Attorneys for Divorce over 50" blog.