Within the Statute you will find the specific notification and objection requirements. For our purposes, we will suppose that you have followed the requirements of notification and your ex-spouse has properly objected to your relocation. How will the Court determine whether you may relocate with your child?
There are two different standards that the Court will apply based on whether you and your ex-spouse are spending “substantially equal time” with your child or children. Please note that “substantially equal time” means time actually spent with the child, not simply the days allotted to you on your Parenting Plan. “Substantially equal” is not a defined term but, in my experience, the Courts in Montgomery County dealing with parental relocation generally accept 150 days or more to be “substantially equal time.” For this reason, we at Ryan K. McFarland's office always advise our military clients who are going through a divorce and determination of child custody to accept no less than 150 days of parenting time, if such can be reasonably exercised. Again, these days must actually be exercised.
If the Court finds that the parties do indeed spend “substantially equal time” with the child or children, then the Court will look at all the aspects of the child’s rearing to determine whether relocation would be in the best interest of the child. A few of these factors are:
- The extent to which parenting time rights have been allowed and exercised;
- Whether the relocating parent is likely to comply with any new parenting time arrangement once he or she is out of the jurisdiction;
- The love, affection, and emotional ties existing between parents and child; and
- The stability of the parents’ family unit.
What if the Court finds that the parties are not spending “substantially equal time” with the child or children? There is a legal presumption favoring the relocation, when the relocating parent spends substantially more parenting time with the child. In this instance, it is presumed that the parent should be allowed to relocate with the child. In that case, the relocation will be allowed unless:
- There is no reasonable purpose for the move (when looking into the reasonableness of a move it must have a significant purpose and courts will consider both economic and non-economic factors in an intensive examination of the unique factors of each case); or
- There is a threat of specific and serious harm to the child if the move occurs; or
- The motive for the move is vindictive.
If any of these three grounds are found, then the Court must conduct the best interests analysis described above.
Obviously, protecting the custody of your children during a military relocation is of utmost importance. Because the Court will be conducting a detailed analysis and weighing several factors, it is advisable to speak with a knowledgeable family law attorney. McFarland Law Office, located in Clarksville, Montgomery County, has dealt with many custody issues involving military relocations. We would be happy to ensure that you and your child’s best interests are protected. Consultations are always free and if you are facing custody issues due to military relocation, please give us a call at (931) 516-9009.