Tag Archives: family law

When A Parent Wants To Move Away and Take The Child

Kentucky Supreme Court Justice Cunningham wrote a beautiful dissent in a case that touches on many child custody and parenting issues, including relocation of the child away from one parent.  I have taken liberty to trim away the introductory paragraph and I have highlighted some of the more thought provoking pieces.

We can no longer afford the simplistic approach to arbitrarily allow parents to relocate to distant places simply because the child is doing fine in the primary physical custody of that parent. There is a tremendous amount of evidence which connects frequent residential moves of children of separated parents to major problems in child adjustment. The effects upon children being frequently relocated include lower academic performance and higher rates of problems with depression, conduct, and peer relationships.  We are not talking about moves by intact families where children usually cope and sometimes even thrive. Relocation by a divorced parent where the child is torn away from the mother or father is uniquely different.
In 1998, the prestigious American Academy of Matrimonial Lawyers took on the difficult problem of parental relocation and proposed a Model Relocation Act. The Act itself lists several factors that the trial court should consider before allowing the relocation of a child.  While many states have dealt with the relocation issue through legislation, others have given — as we should do here — guideposts to trial courts through their highest courts.
Of course, each jurisdiction is unique, but there are common factors running through all. The following are but a few of these common factors:

(1) the age of the child;
(2) the purpose of the move;
(3) the distance of the move;
(4) the worthiness of the move for the child when balanced with any negative effects;
(5) the improvement of the child’s standard of living;
(6) the physical hardship of travel for the child on visitation with the non-custodial parent;
(7) the presence or absence of extended family for the child at the new location versus the existing location;
(8) the motivation of the non-custodial parent for objecting to the move (i.e., is it genuine concern for the child or simply a way of punishing the former spouse?);
(9) whether the non-custodial parent has turned down career advancement opportunities by not moving away in order to stay close to the child;
(10) the possibility and plausibility of the non-custodial parent following the child; and
(11) the number of times the custodial parent has moved.

I search in vain to find attention given by the trial court to any of these key elements in its custody determination.
It is significant that this is a “joint custody” case and Justice Noble ably describes how that arrangement places more responsibility for child rearing on both parents than in a “sole custody” situation. Here, the non-custodial parent is legally entitled to be involved in all aspects of the child’s life, which is independent of the time actually spent in the child’s presence. The letter and spirit of Chalupa, a landmark case referred to by the majority, hovers over these relocation cases. Indeed, “a divorce from a spouse is not a divorce from their children,” especially in joint custody cases. However, when the custodial parent moves far away with a child, an effectual “divorce” occurs between the child and the non-custodial parent.
The trial court in this case gave no treatment whatsoever to the contributing role of the father in making this child happy and a good student. There was no consideration of what would happen when this dual parenthood was cut asunder. The trial judge stated: “The court is not inclined to end a six year relationship of a child with a parent merely because that parent remarries and moves to a different location.” The essence of the trial court’s findings dealt only with uncontroverted issues; the parties never contested that both were good parents, or that the child had been with the mother for a very long time and was doing well. The trial court dealt solely with the relocation and its effects on the child. Yet the findings totally ignore the issue of the case.
The importance of having both parents engaged in the upbringing of children cannot be overemphasized. Reams of research material are available addressing the negative impact parental relocation has upon children. If we are truly dedicated to placing the child’s best interest as paramount, then we must seriously rethink our current notions of adult freedoms and prerogatives. When a custodial parent decides to move a great distance, the non-custodial parent may no longer be deeply involved in the child’s life. The custodial parent has a choice — the choice not to move. The non-custodial parent has no choice and is not only helpless, but essentially stripped of his or her child. The child is also at the mercy of the custodial parent’s choice.
The majority refers to another relocation case that this Court decides today, which works in tandem with this one. Frances v. Frances, S.W.3d , 2008 Ky. LEXIS 258 (Ky. 2008). Not only are these two cases distinguishable, but the distinction between them is instructive. First of all, in Frances this Court affirms the Court of Appeals’ decision which relied heavily upon Brumleve v. Brumleve, 416 S.W.2d 345 (Ky. 1967). That case provides the underpinning for this dissent: “[Custodial parents] should be given considerable latitude in choosing where they will live. But when this right is challenged by the former [spouse and parent] of the children, [the custodial parent] should offer some plausible reason for taking minor children out of the jurisdiction of the court to the prejudice of the visitation rights of the [non-custodial parent]. Mere whim is not enough.” Id. at 346. In Frances, the trial court considered the issue of relocation as critical to its decision-making. The majority declared: “Though the trial court stated the relocation of the Appellant was a substantial factor in the custodial determination . . . the record also indicates that the trial court placed significant weight on Haley’s strong relationship with her father, frequent interaction with the father’s extended family, and adjustment within the community.” Id. at 758.
In my writing here, I do not opine that the trial court necessarily got it wrong in this case. However, I think there was insufficient consideration of the core issue — the impact of the relocation upon the child. Or at best, there were insufficient findings and lack of a much needed analysis.
I am concerned that our Court passes up a golden opportunity today to lend much needed guidance to our trial judges, who continue to confront the problem before us without assistance from this Court or the legislature.
Therefore, I very respectfully dissent.
Pennington v. Marcum, 266 S.W.3d 759, 772-774, 2008 Ky. LEXIS 235, 31-38 (Ky. 2008)

 

 

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What is legal separation?

In Kentucky:

Legal separation is a means of establishing some legal rights in a marriage short of divorce. A legal separation means that the two people have agreed to how to divide up property and marital obligations but will remained legally married. During a legal separation action, the parties enter into a Separation Agreement which is then filed with the court.  The agreement then governs the husband and wife in how they deal with marital property and assets going forward. Both parties must be in full agreement on every issue in order to be granted a legal separation.  It is the equivalent to entering into a contract.  Such an agreement may define what actions must be taken to restore the marriage, list which events will cause either party to move for divorce, or deal with child or monetary issues while the parties live apart, etc.

If a Decree of Legal Separation is entered:

A a divorce decree then cannot be entered until 1 year has passed from the date of the legal separation.   The divorce is not automatic after 1 year but the court cannot enter a divorce decree until  the 1 year has passed.  Property later acquired by either spouse is his or hers to keep if the spouses ultimately divorce. Such property is not considered “marital property” which a court must divide “in just proportions.” KRS 403.190.
Provisions in each spouse’s will which award property to the other spouse are not affected. In contrast, when divorce is granted, all dispositions of property made to the former spouse are automatically revoked. KRS 394.092.
The parties are not free to marry someone else. Parties may marry again only if they have been granted a divorce. KRS 403.010.
Purpose/Necessity

Legal separation may be desirable under any of the following circumstances:

The parties are willing to see if a time apart will cure a temporary marital problem or will prove that divorce is necessary.
The parties feel the need to separate but one or both have religious, moral, or social misgiving about obtaining a divorce.
The parties want to separate in some fashion but would like to retain certain benefits such as health insurance, Social Security, or the ability to file joint tax returns.  Some may choose legal separation as opposed to marriage due to religious beliefs.

If you have question regarding anything mentioned on this site, please contact a family law attorney in your area.  If you would like to schedule a free consultation with a northern Kentucky family law attorney please call (859)400-3733, (859)400-FREE or visit the main page at kenturnerlaw.com.

When does the obligation to pay child support stop?

Most people believe that the obligation to pay child support ends when a child turns 18.  While the age of majority is 18, child support does not always terminate just because a child turns 18.

Child support terminates when the order requiring the payment of the child support dictates payments must end. Kentucky Statutes state that unless there is a written agreement stating when child support will end or unless the termination is provided in a court order/divorce decree, child support will be terminated when the child turns 18 unless the child is a high school student.  If the child turns 18 while still in high school, the child support will continue until the end of the school year or until the child turns 19.

If a child is emancipated due to marriage instead of age, the child support obligation ends on the date emancipation. The obligation to pay back child support does not terminate.

The statute referenced above is as follows:

Unless otherwise agreed in writing or expressly provided in the decree, provisions for the support of a child shall be terminated by emancipation of the child unless the child is a high school student when he reaches the age of eighteen (18). In cases where the child becomes emancipated because of age, but not due to marriage, while still a high school student, the court-ordered support shall continue while the child is a high school student, but not beyond completion of the school year during which the child reaches the age of nineteen (19) years. Provisions for the support of the child shall not be terminated by the death of a parent obligated to support the child. If a parent obligated to pay support dies, the amount of support may be modified, revoked, or commuted to a lump-sum payment, to the extent just and appropriate in the circumstances. Emancipation of the child shall not terminate the obligation of child support arrearages that accrued while the child was an unemancipated minor.

A qualified marital and family law attorney can review a child support order to determine whether child support will automatically terminate upon certain circumstances. Such an attorney can also assist with an application for modification of support. Please contact the Ken Turner Law Firm if we can be of assistance to you.