Does ex wife have right to move son to another state?
Full Question:
Answer:
Typically, at the time of the divorce, both parents are living in the same town. But it happens sometimes that at some point after the divorce, one parent wants to move away. Often this is because of a job offer. Other times, the party simply wants to return to his or her family. The issue then becomes: can the parent who is staying behind prevent the other party from moving?
If it is the parent who does not have physical custody, there is no issue. That parent may move. Often, visiting arrangements have to be changed, to allow for fewer, but longer, blocks of time. Typically, children visit spouses in other states during winter break and for part of the summer.
Generally, a parent with physical custody may relocate with a child if not prevented by a court order and it is not done with the intent to deprive the other parent of access to the child. However, if the parent who has physical custody wants to move, and the other parent protests, the courts in most states have the authority to decide, on behalf of the children, whether the custodial parent may move.
The courts typically consider the following factors:
- Whether the move will improve the child's school or community.
- Whether the parent's motive was to harm the non-custodial parent.
- Whether the non-custodial parent's motive in resisting the move is to harm the custodial parent.
- Whether the non-custodial parent will still be able to have ongoing and significant contact with the child.
- The nature of the non-custodial parent's contact with the child so far. In cases that denied the move, a consistent theme is that the other parent has spent many hours each week with the child, consistently showed up for all his or her visitations, and established a close, supportive, and loving relationship with the child.
- The effect, either way, on the child's contact with grandparents and other people who are important influences in his or her life, as well as contact with the child's native culture.
The following is a WI statute:
948.31 Interference with custody by parent or others.
(1) (a) In this subsection, "legal custodian of a child" means:
1. A parent or other person having legal custody of the child under an
order or judgment in an action for divorce, legal separation, annulment,
child custody, paternity, guardianship or habeas corpus.
2. The department of children and families or the department of
corrections or any person, county department under s. 46.215, 46.22, or
46.23, or licensed child welfare agency, if custody or supervision of the
child has been transferred under ch. 48 or 938 to that department, person,
or agency.
NOTE: Subd. 2. is shown as amended eff. 7-1-08 by 2007 Wis. Act 20. Prior
to 7-1-08 it reads:
2. The department of health and family services or the department of
corrections or any person, county department under s. 46.215, 46.22 or
46.23 or licensed child welfare agency, if custody or supervision of the
child has been transferred under ch. 48 or 938 to that department, person
or agency.
(b) Except as provided under chs. 48 and 938, whoever intentionally
causes a child to leave, takes a child away or withholds a child for more
than 12 hours beyond the court-approved period of physical placement or
visitation period from a legal custodian with intent to deprive the
custodian of his or her custody rights without the consent of the custodian
is guilty of a Class F felony. This paragraph is not applicable if the
court has entered an order authorizing the person to so take or withhold
the child. The fact that joint legal custody has been awarded to both
parents by a court does not preclude a court from finding that one parent
has committed a violation of this paragraph.
(2) Whoever causes a child to leave, takes a child away or withholds a
child for more than 12 hours from the child's parents or, in the case of a
nonmarital child whose parents do not subsequently intermarry under s.
767.803, from the child's mother or, if he has been granted legal custody,
the child's father, without the consent of the parents, the mother or the
father with legal custody, is guilty of a Class I felony. This subsection
is not applicable if legal custody has been granted by court order to the
person taking or withholding the child.
(3) Any parent, or any person acting pursuant to directions from the
parent, who does any of the following is guilty of a Class F felony:
(a) Intentionally conceals a child from the child's other parent.
(b) After being served with process in an action affecting the family but
prior to the issuance of a temporary or final order determining child
custody rights, takes the child or causes the child to leave with intent to
deprive the other parent of physical custody as defined in s. 822.02 (14).
(c) After issuance of a temporary or final order specifying joint legal
custody rights and periods of physical placement, takes a child from or
causes a child to leave the other parent in violation of the order or
withholds a child for more than 12 hours beyond the court-approved period
of physical placement or visitation period.
(4) (a) It is an affirmative defense to prosecution for violation of this
section if the action:
1. Is taken by a parent or by a person authorized by a parent to protect
his or her child in a situation in which the parent or authorized person
reasonably believes that there is a threat of physical harm or sexual
assault to the child;
2. Is taken by a parent fleeing in a situation in which the parent
reasonably believes that there is a threat of physical harm or sexual
assault to himself or herself;
3. Is consented to by the other parent or any other person or agency
having legal custody of the child; or
4. Is otherwise authorized by law.
(b) A defendant who raises an affirmative defense has the burden of
proving the defense by a preponderance of the evidence.
(5) The venue of an action under this section is prescribed in s. 971.19
(8).
(6) In addition to any other penalties provided for violation of this
section, a court may order a violator to pay restitution, regardless of
whether the violator is placed on probation under s. 973.09, to provide
reimbursement for any reasonable expenses incurred by any person or any
governmental entity in locating and returning the child. Any such amounts
paid by the violator shall be paid to the person or governmental entity
which incurred the expense on a prorated basis. Upon the application of any
interested party, the court shall hold an evidentiary hearing to determine
the amount of reasonable expenses.
Please see the information at the following links:
http://definitions.uslegal.com/c/child-custody-and-support/
http://definitions.uslegal.com/s/shared-custody/
http://definitions.uslegal.com/i/interference-with-custody/
http://lawdigest.uslegal.com/family-laws/child-custody/
http://definitions.uslegal.com/p/primary-custody/