I am in the process of obtaining a new job in Nevada. My divorce is final and I have sole custody of my two daughters and there is nothing said in the maarital settlement about me moving out of state. Can I move and can he try to stop me? ...

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I am in the process of obtaining a new job in Nevada. My divorce is final and I have sole custody of my two daughters and there is nothing said in the maarital settlement about me moving out of state. Can I move and can he try to stop me?

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DakotaLegal's picture

The second part of your

The second part of your question is easier to answer: yes, he can probably try and stop you from moving, with the girls. You can still look for any job, anywhere you want, and move without the girls. The trickier part is whether or not your planned move interferes with his existing rights under the custody agreement.

One big factor is going to be whether the custody arrangement was mostly reached between you and your ex-husband, or was the result of a court hearing and order. It sounds more like you and your ex-husband came to an independent agreement. Having a somewhat informal working agreement makes it less likely that you can simply pack up and move. But California is pretty loose in allowing you, as the custodial parent, to move. Check out the self-help section of California domestic orders to compare your custody order with what are known as “Model” orders. http://www.courts.ca.gov/selfhelp-family.htm

Your having full custody can also be challenged, if the circumstances are important, or “material.” In California, the moving of children is not automatically going to be considered a change in circumstances, so as to stop a move by the custodial parent. That’s good news for you. The burden is on the father, but you have to be ready and able to meet and answer his objections.

http://washburnlaw.edu/faculty/elrod-linda-fulltext/2006-3journalofchild...

The more recent the custody order, the more likely the judge anticipated that your having custody would be in the best interests of the daughters the way they were at the time you were awarded custody. In other words, a judge emphasizes that you did not win anything…but were best able to represent the well-being of the kids. This reasonably includes your making a living.

There is another element, in whether or not you can simply take the kids. If you did, your husband might file for a new custody hearing. You might answer with your own, new suit for custody in Nevada, and the two state courts might battle over who has jurisdiction to settle custody, and even what exactly it mans to have the “best interests of the children” in focus.

http://www.childwelfare.gov/systemwide/laws_policies/statutes/best_inter...

If you lost that battle, and the court in California had jurisdiction, you might have really weakened your claim to be considering the best interest of the children: if the Court concluded you’d not been willing to work with the father.

There are also probably going to be specific terms you need to look at in the custody order, with more detail than just the label “full custody.” There might, for example, be requirements for you to follow certain holidays or religious agreements regardless of your your own beliefs…all of which show that moving away from one parent is not to be encouraged by a court judge. The age of the daughters, their wishes, and the amount of time they depend on their father are important factors.

Where you move can also be important, for two very different reasons. First, are you limited in where you can find work, in this economy, and with your skills? Perhaps, Nevada is the best state for you and your daughters, based on your industry expertise. A court is much more tolerant of a move by the custodial apparent when it is a unique opportunity. The location may still be close to the dad, in California. Second, many states have quite different approaches to other state custody orders. It might happen that a California court has no problem with your move, based on you having “full custody.” But after going to the other state, the father may actually be in a better position to change the custody arrangement, more to his benefit, based on Nevada state custody rules.

Finally, how you approach a move (in terms of respecting the other parent) can affect your success in being allowed by the judge to move and keeping custody. Does the father know of your intentions, and can he easily relocate to the same area? Is mediation required in the Custody order for issues of disagreement?

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DakotaLegal's picture

The second part of your

The second part of your question is easier to answer: yes, he can probably try and stop you from moving, with the girls. You can still look for any job, anywhere you want, and move without the girls. The trickier part is whether or not your planned move interferes with his existing rights under the custody agreement.

One big factor is going to be whether the custody arrangement was mostly reached between you and your ex-husband, or was the result of a court hearing and order. It sounds more like you and your ex-husband came to an independent agreement. Having a somewhat informal working agreement makes it less likely that you can simply pack up and move. But California is pretty loose in allowing you, as the custodial parent, to move. Check out the self-help section of California domestic orders to compare your custody order with what are known as “Model” orders. http://www.courts.ca.gov/selfhelp-family.htm

Your having full custody can also be challenged, if the circumstances are important, or “material.” In California, the moving of children is not automatically going to be considered a change in circumstances, so as to stop a move by the custodial parent. That’s good news for you. The burden is on the father, but you have to be ready and able to meet and answer his objections.

http://washburnlaw.edu/faculty/elrod-linda-fulltext/2006-3journalofchild...

The more recent the custody order, the more likely the judge anticipated that your having custody would be in the best interests of the daughters the way they were at the time you were awarded custody. In other words, a judge emphasizes that you did not win anything…but were best able to represent the well-being of the kids. This reasonably includes your making a living.

There is another element, in whether or not you can simply take the kids. If you did, your husband might file for a new custody hearing. You might answer with your own, new suit for custody in Nevada, and the two state courts might battle over who has jurisdiction to settle custody, and even what exactly it mans to have the “best interests of the children” in focus.

http://www.childwelfare.gov/systemwide/laws_policies/statutes/best_inter...

If you lost that battle, and the court in California had jurisdiction, you might have really weakened your claim to be considering the best interest of the children: if the Court concluded you’d not been willing to work with the father.

There are also probably going to be specific terms you need to look at in the custody order, with more detail than just the label “full custody.” There might, for example, be requirements for you to follow certain holidays or religious agreements regardless of your your own beliefs…all of which show that moving away from one parent is not to be encouraged by a court judge. The age of the daughters, their wishes, and the amount of time they depend on their father are important factors.

Where you move can also be important, for two very different reasons. First, are you limited in where you can find work, in this economy, and with your skills? Perhaps, Nevada is the best state for you and your daughters, based on your industry expertise. A court is much more tolerant of a move by the custodial apparent when it is a unique opportunity. The location may still be close to the dad, in California. Second, many states have quite different approaches to other state custody orders. It might happen that a California court has no problem with your move, based on you having “full custody.” But after going to the other state, the father may actually be in a better position to change the custody arrangement, more to his benefit, based on Nevada state custody rules.

Finally, how you approach a move (in terms of respecting the other parent) can affect your success in being allowed by the judge to move and keeping custody. Does the father know of your intentions, and can he easily relocate to the same area? Is mediation required in the Custody order for issues of disagreement?