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POST DIVORCE: A NEW BEGINNING
from: Odalis M. Encarnacion The divorce is finally over.
No more fighting over who gets to keep the home and other real
estate. Those leather couches, and the expensive art hanging on
the walls of your summer home. A drop in the bucket compared to
the company that both of you slaved over to build or the family
pet that made your kids so happy. The whole process almost
landed you in Bankruptcy Court. But even now, all that looks
small compared to the most important issue of all: child
custody. But hey--all of this is over. Resolved. Now you can
breathe a sigh of relief. You've probably been wondering about
your future - without your x. Yes, being single again definitely
has its benefits. Maybe you're going out more, enjoying life,
and watching your diet. It's those little things you haven't
enjoyed in a long time that suddenly make life worth
living-again.
Most people who choose divorce and feel this kind of relief, are
-in the end--happy with the decision they made. What you both
needed was peace. And now you have it. And happy to have a new
chance to find that RIGHT special someone to build a life
together. But that's not where the story ends. You might wake up
one day, and feel like changing your life completely. Maybe you
decide that your financial security and personal happiness are
somewhere, anywhere other than where you are right here and now.
Somewhere outside of New York you may be thinking. Maybe a
better job is waiting in another state. Maybe you have health
reasons or better yet, a new relationship. A voice deep in your
heart keeps telling you to move. So maybe you do need a new
start: to realize your dreams, to focus on your career, and to
build a new home. You have every right to want to leave the old
memories behind. But how can you do that when you see the same
places you once shared? And with someone who may have broken
your heart. So, a new opportunity and a new chance to build a
new life in a new state with new friends sounds great. Even
Newsweek lists the ten best cities to go live in. You might be
thinking that you'll go to the web looking for info sites
detailing how to build a healthy home. Now, maybe you decided
your destiny is to live with the stars under the shining lights
of Hollywood. And well, hey at least the weather is nicer, the
water is clean and the sand is soft. Right? But what about your
fantastic plans to leave the country? If you plan on taking the
kids anywhere out of the country or even out of the state,
here's what you need to consider.
Planning is everything.
First, leaving with your kids without permission from your x
spouse, is against the law. In fact, it's a serious felony
called "Parental Kidnapping". Most attorneys know very well that
the FBI works in cooperation with local law enforcement agencies
to ensure that parental kidnappers are brought to justice. They
are arrested. They are prosecuted. And they are sent to prison.
Unfortunately, some parents think more with their heart than
their minds. The result? A tragedy for everyone. Parents--no
matter how good their intentions-- who get arrested for
kidnapping their own children, have to hire a criminal defense
lawyer. But wait--that's money that could be better spent
improving your life. Not exactly what you had in mind. So how do
you take your children legally without hassles and headaches?
What does the law say?
First, if possible, get permission. If asked nicely, maybe your
x-spouse would agree to give you sole custody of your child and
eliminate the need to proceed to Court. If you obtain sole
custody this way, you do not need to read on because you are
almost home. However, if that is not possible then your former
spouse may agree on a joint custody agreement with a passport
waiver clause. Such a clause would allow you to apply for a
passport on behalf of your child without the need to consult
with your former spouse, and thereby giving you the option of
going abroad on vacation, with your child - in peace. However,
if your mission is to live with you child permanently out of
state, the custody agreement needs to say that-- exactly and
clearly. In New York, the law says that barring parental
permission, a spouse or a custodial parent may take the children
out of the state by Court Order. Usually, when there's been a
difficult relationship between both x- spouses, one spouse will
not permit the other to take the kids out of state, much less
the country. In these situations, the former spouse may try to
use your desire to move as an opportunity to get money from you.
The usual offer is that they'll let you leave the state, if you
agree to drop all child support proceedings or any existing
child support court orders. If that happens to you, the most
logical step is to go to Court. Normally, a Family Court Judge
decides whether or not the relocation out of state with the
child would be allowed.
It's your choice--use your voice.
Understanding the practical reasons behind the legal challenges
that you'll face, are easier to accept when you fully appreciate
the intentions behind them. The way the law sees it, in you
taking your child outside of the state of New York, you are
effectively denying your x-spouse their visitation rights. In
turn, this basically deprives your former spouse of a meaningful
opportunity to maintain a close relationship with your kids. Now
you may say that your x-spouse is welcome to visit anytime, or
that you'll send the child back to New York anytime that your x
wants. And in order to do this you may ultimately be prepared to
drive the kids cross state lines, both to and from your former
spouse's home (like taking a cross-country road trip every
weekend). Maybe the fact that your move would make it much more
difficult for your former spouse to exercise their visitation
rights does not entirely dampen your desire for geographical
relocation. However, you should understand that a Court must
seriously consider the well being of the child first and
foremost. Specifically, they consider the following seven
issues: 1. Whether the move would be in the child's best
interest. 2. Whether it is feasible for your former spouse to
make a similar move to the same state. 3. Whether your move
involves an economic hardship or necessity. (e.g. a job offer).
4. Whether your move involves a new marriage to someone who
lives in the state where you're moving. 5. Whether you're moving
for health and medical reasons. 6. Whether your move will
negatively impact the relationship between the child and your x.
7. Whether your former spouse has a good faith reason for
opposing the move. There's one part of this that really isn't
understood by most parents, is the "Best Interest Test". This
test is the way the Courts try to understand the effect that the
move may have on any of your family relationships. In
determining what the child needs most, the Courts generally look
at many things. For example, whether your move will hurt your
child's ties to your former spouse and the community. These
reasons are generally looked at by the Court when those ties are
very strong. So if your child has a hard time getting along with
your former spouse (and the blame is not attributed to you) then
those possibilities are not weighed as heavily.
Sample Case.
If your parents and your former spouse's parents are also in
New York and you're planning on moving to New Jersey, then it's
also likely that your children will not see their grandparents
as much as they would have in the past. The quality of the
parental relationship usually suffers as a result of moving. The
same is true of your child's relationship with their
grandparents. If your child has a hard time getting along with
their grandparents (and the Court decides is not your fault)
then you have a better case for getting Court approval for the
move. However, most judges usually have enough experience to
know when the former spouses are trying to hurt each other by
proposing or opposing a residential move. Generally, although a
Court may deny you of the right to move with the kids, most
"good faith requests" are seldom denied.
In the end, it all works out.
Ultimately, it's the Courts who determine, with the help of your
lawyer, (and based on all of the proof you have) whether you
have proven that the welfare of your child will not be hurt by a
move.
About the author:
Odalis M. Encarnacion is a New York City Family Lawyer in
private practice. For more information visit him on the web:
http://www.encarnacionlaw.com
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