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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.

  1. 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.

  2. 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;





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