Category: sole custody

Can I Prevent the Other Party From Relocating?

Can I Prevent the Other Party From Relocating?

 

In our increasingly mobile society, it is a sad reality that at some point in a coparenting relationship, one parent may decide to relocate to another state and take the child.  There are a myriad of legitimate reasons for a move.  Perhaps, new job opportunities await.  The other parent may have additional family available to help them.  The person may simply want a new start (maybe in a warmer climate).  Many people want to know if there is anything they can do to prevent the possibility of such a move.

KENTUCKY RELOCATION RULES

Kentucky has implemented the Family Court Rules of Practice and Procedure.  Those rules specify that “[b]efore a joint custodian seeks to relocate, written notice shall be filed with the court and notice shall be served on the non-relocating joint custodian.”  Once that notice is filed, the other party can file a motion to modify custody or timesharing within twenty (20) days unless the parties agree.  Whether the court allows the relocation will be very fact dependent, but if a parent is seeking to relocate solely to frustrate the other parent’s time or relationship with the child, the court will likely not allow the child to move in a joint custody situation.  If, however, the relocating parent is a sole custodian, the chances of the court approving the relocation are greatly increased and the rules less stringent.

BACKUP PLAN

Another option to plan for a possible relocation is to have a backup plan; a “Plan B” timesharing schedule if you will.  In this situation if you know there is a chance that one parent may relocate in the near future, you can build that eventuality into the parenting plan.  In that way, if there is a relocation, no additional litigation expenses are incurred, the parties would simply begin following the “Plan B” schedule.  While it may not be a particularly pleasant thought to contemplate, it is better to address the possibility now rather than having to relitigate the case.

NO RELOCATION CLAUSE

A final option is to include a firm “no relocation” clause in a final parenting agreement.  You may or may not be successful in negotiating such a provision and it will probably depend heavily on the parties involved.  Keep in mind it is unlikely that a court would ever order such a provision in a final judgment so this could only be included in a negotiated settlement.  If you include a “no relocation” clause, it will need to be very narrowly crafted.  courts are very hesitant to enforce these clauses for fear of violating a person’s right to relocate for legitimate, good faith reasons.  The courts are at all times primarily concerned with the best interests of the children and could very well override the “no relocation” clause.

If relocation is a possibility in your case, discuss the issue with your divorce/custody attorney as soon as possible to ensure your rights are properly addressed.

Photo courtesy of Karen Apricot

New Grandparent Visitation Case: Fit Parents’ Wishes Must be Given Deference

New Grandparent Visitation Case: Fit Parents’ Wishes Must be Given Deference

Last week the Kentucky Court of Appeals issued a flurry of reported cases.  Among them was a case that further clarified the manner in which grandparent visitation cases must be presented to the family court.  In Waddle v. Waddle the mother was granted sole custody of the parties’ minor son in part because the father was incarcerated.  The paternal grandparents filed both a separate action for grandparent visitation and also to intervene in the divorce.  Over the course of much legal wrangling, and over the strenuous objection of the mother, the grandparents were granted standard visitation (essentially alternating weekends) with the minor child.

The Court of Appeals reversed the trial court’s decision.  In its ruling, the court of appeals does a good job of summarizing the current state of the law in the Commonwealth on grandparent visitation.  First the court points out that Kentucky does have a statute recognizing grandparent visitation, but notes that the statute has been impacted by the constitutional determinations of the United States Supreme Court in Troxel v. Granville.  In Troxel, the U.S. Supreme Court said that fit parents have a constitutionally protected right to raise their children as they see fit.  This includes prohibiting the chid’s contact with certain people.  This case established that a fit parent acts in the best interests of the child.  In Walker v. Blair, the Commonwealth adopted a similar rule when it said a “court must presume that a fit parent is making decisions that are in the child’s best interest.”  In order for a grandparent to rebut this presumption, the grandparent must establish by clear and convincing evidence (a fairly high standard to meet), that grandparent visitation is in the child’s best interests.  This means that the grandparent must prove that the parent’s decision to deny visitation is clearly wrong and not in the child’s best interests.  If the grandparent fails to present such evidence to the court, then parental opposition alone is sufficient to deny the grandparent visitation.

Ultimately, in Waddle the Court of Appeals determined that the trial court had failed to make sufficient findings of fact to show that the grandparents had carried their burden of rebutting the presumption that the mother was acting in the best interests of the child.  This decision illustrates that while grandparent rights are still alive in Kentucky, they are difficult to establish in a court of law.

Photo courtesy of Brian Turner