Plaintiff and defendant were married in December 2008 and had one minor child born during the marriage, AM. Plaintiff also had a daughter from a prior marriage, who is not at issue in this matter. During the parties’ marriage, plaintiff was primarily a stay-at-home parent while defendant was in the military until he began collecting disability benefits in 2014. However, the marriage was riddled with domestic violence, allegedly committed by both parties, and several periods of separation.
In March 2016, plaintiff filed a complaint for divorce and asked for joint legal custody to continue. Meanwhile, plaintiff had primary custody of the children, and she managed all their educational and health care needs.
In May 2018, plaintiff filed a motion for a change of domicile, requesting the trial court’s approval to relocate with AM to plaintiff’s home state of Alabama. The trial court took testimony on the matter during the parties’ divorce hearing. At the hearing, plaintiff testified that her family resided in Alabama and could offer her support and childcare so that she could obtain an education and employment. She further suggested that both children could continue to have a relationship with defendant through electronic communications and extensive parenting time during the summer and holiday breaks.
Defendant objected to the relocation, arguing that the distance and long periods of time between visitations would strain his relationship with AM.
The trial court agreed with plaintiff that the change in domicile had the capacity to improve both plaintiff’s and AM’s lives, and it granted plaintiff’s motion within the judgment of divorce.
A child whose parental custody is governed by court order has, for the purposes of this section, a legal residence with each parent. A parent of a child whose custody is governed by court order shall not change a legal residence of the child to a location that is more than 100 miles from the child’s legal residence.
Before permitting a legal residence change, the court shall consider each of the following factors:
(a) Whether the legal residence change has the capacity to improve the quality of life
(b) The degree to which each parent has complied with, and utilized time under, a court order
(c) a modification can provide an adequate basis for preserving and fostering the parental relationship
(d) The extent to which the parent opposing the legal residence change is motivated by a desire to secure a financial advantage with respect to a support obligation.
(e) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
The trial court found that the proposed relocation had the capacity to improve the quality of life for both AM and plaintiff. Notably, plaintiff proposed a new parenting-time schedule that would still allow defendant to exercise substantial parenting time, and she expressly asked the court to defendant extensive parenting time in the summer.
The trial court opined that it was possible to modify the parenting-time schedule in a manner that could provide an adequate basis for preserving and fostering the parental relationship between defendant and AM.
The record supports a conclusion that plaintiff’s motion was not motivated by a desire to secure a financial advantage with respect to a support obligation.
If you are going through a divorce or are separating from the mother or father of your children, it is important to protect your custodial rights. Seek the advice and guidance of an experienced family law and divorce attorney who will be by your side every step of the way.