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Relocating Out of State With A Child
Relocating Out of State With A
Child
By
Maury D. Beaulier, Esq.
Index
Notice of Relocation
Objection to Relocation
Standards for Allowing of
Disallowing Move
One Parent has
Greater physical Placement
Parents have Equal Physical
Placement
How to Prepare your Case
NOTICE OF RELOCATION
Under Wisconsin Statutes, when a parent seeks to relocate out of the
state with a minor child or within the state of Wisconsin at a distance
greater than 149 miles from the non-moving parent that parent must
first provide NOTICE TO OTHER PARENT. If the existing court order grants periods
of physical placement to more than one parent, it shall order a parent with
legal custody of and physical placement rights to a child to provide not less
than 60 days written notice to the other parent, with a copy to
the court, of his or her intent to establish his or her legal residence with the
child at any location outside the state.
OBJECTION TO RELOCATION
The other parent then must file an OBJECTION to the relocation within 15 days
after receiving the notice of the move. The OBJECTION should be served on the
other parent and filed with the court.
STANDARDS FOR
ALLOWING OR DISALLOWING MOVE
If the relocation is contested, the Court is bound by certain STANDARDS by
which it must decide whether to allow the relocation. There are different
standards depending on the facts of the case.
- One Parent
Has Child Greater Period of Time. If the parent proposing the
move or removal has sole legal or joint legal custody of the child and the
child resides with that parent for the greater period of time,
the parent objecting to the move or removal may file a petition, motion or
order to show cause for modification of the legal custody or physical
placement order affecting the child. The court may modify the legal custody
or physical placement order if the court finds all of the following:
- The modification is in the best interest of the child.
- The move or removal will result in a substantial change of
circumstances since the entry of the last order affecting legal custody
or the last order substantially affecting physical placement.
There is a rebuttable presumption that continuing the current allocation
of decision making under an existing legal custody order or continuing
the child's physical placement with the parent with whom the child resides
for the greater period of time is in the best interest of the child. This
presumption may be overcome only by a showing that the move or removal is
unreasonable and not in the best interest of the child. A change in the
economic circumstances or marital status of either party alone is not
sufficient to meet the standards for modification. Remember, under the
statute, the burden of proof is on the parent objecting to the move or
removal.
Some FACTORS USED IN COURT'S DETERMINATION include:
(a) Whether the purpose of the proposed action is reasonable.
(b) The nature and extent of the child's relationship with the other
parent and the disruption to that relationship which the proposed action may
cause.
(c) The availability of alternative arrangements to foster and continue
the child's relationship with and access to the other parent.
Parent's Share Time
Equally. However, if
the parents have joint legal custody and have substantially equal periods of
physical placement, the matter is litigated under Wis. Stats.
§767.327(3)(b), Stats. In such an instance, the parent planning the move
does not have the benefit of that presumption against modification.
The Court often appoints a custody evaluator and/or a Guardian Ad
Litem to help determine what is, in fact, in the best interests of the
child. The analysis may look into how much planning has gone into the
relocation, the nature of the schools that the child will attend and or the
stability of the proposed housing in the new state contrasting those facts
with the current situation or the situation that is presented by a change in
physical placement.
HOW
TO PREPARE
Any request to relocate should be supported
by documentation demonstrating that you have though the matter through and
that the relocation is in the child's best interest. To prepare, you may
wish to include the following:
NEIGHBORHOOD & SCHOOL.
Know where you will be living and describe the benefits
of the neighborhood and the schools the child will attend (photos are
helpful);
DAYCARE.
Research any daycare facilities that you intend to use and include as part
of your motion a brochure or contract from the provider;
EMPLOYMENT.
If you are moving to improve yourself financially, include information
regarding your new job or your planned education including any employment
contracts or offers, benefit information or brochures.
HEALTH.
If there are any health considerations regarding the move, include those as
part of your motion. For example, if you are moving to a warmer climate that
benefits asthma (yours or the child's) include that in your motion.
If the Court allows the relocation, it often
requires the party moving to pay more of the transportation costs related to
visitation.
There is no "standard" visitation schedule
when the visitation must occur at a distance. Often, however, the courts
grant the non-custodial parent extended access times for fall breaks, spring
breaks, Christmas breaks and summer months.
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