Question: I have two daughters ages 12 and 16. My ex-wife took a job that requires her to work nights and moved out of town 50 minutes away so they have lived with me for the last 20 months full time with them going to her house every other weekend. Now she is talking about either moving back closer, but still working nights 50 minutes away.
Our divorce agreement states we share custody. It lists me with primary residential custody with her getting them every other week. Every year or so my ex-wife tells the kids she is moving back to Alabama and asks them if they want to move with her. I don’t like the idea of getting the kids involved without a decision being made.
My youngest told her she wants to live with her but my oldest does not. I don’t think splitting them up would be good and the job my ex is looking at could require nights and weekends.
What are the chances she will be able to get a court to rule that she can take my youngest with her? Should I get my divorce agreement changed now to show the arrangement we have or wait to see what her next move is (changing the agreement will cause a real strain on our somewhat positive relationship)? I try to keep things civil by not giving any reason for arguments. How hard would it be to have the divorce agreement changed to reflect the current situation if she does not want me to change it?
Informal custody agreements between parents are just that – common, but informal. Courts rarely, if ever, enforce them or modify their own orders to reflect them because they have an independent duty to ensure that the current order is in the child’s best interests. Depending on the procedures in your local courts and the temperament of your particular judge, this could range from merely placing a judicial stamp of approval on a written agreement between parents styled as a “amendment number X to divorce decree” to an evidentiary hearing during which one or both of the parents give testimony to explain why the agreement is in the child’s best interests.
In most states, when the parents share custody (as you do), the standard to modify the court’s order is “substantial change in circumstances” or “proper cause,” although your local courts and your particular judge may call it something else. This is true whether you seek to modify the decree to reflect your current agreement or your ex-wife seeks to modify the decree to reflect her proposed change of domicile for one of your daughters. The touchstone of this standard is a change since the last order (your decree) sufficient to modify the order to better serve your children’s best interests. The analysis is highly fact-intensive. As you might surmise, having the children with you a substantial period of time is a fact in your favor, whereas your ex-wife’s back-and-forth moves and long work hours are facts against her. Split custodial arrangements, where one child lives with one parent and the other child with the other parent, can be “for” or “against” a parent depending on, inter alia, whether the children are close, how far the children will have to travel to go to school, see friends, be with each other and the other parent, etc.
To answer your strategic question about who should file first, I would need to learn more about the facts in your case. You note that a motion would put a strain on your relationship – that usually means you should wait, then file the motion if your ex-wife’s intentions look unavoidable or she does something not in your children’s best interests (e.g., begins to alienate them from you). Other facts to consider include how definite her next move is, your children’s ages, how long it has been since your last custody order (your decree), your current financial, physical, and emotional status, any other strains in your relationship with your ex-wife or your children, any other fact relevant to your children’s best interests. While it is true that the first to file has an “upper hand” in presenting the case, it is also true that filing too soon gives the other parent an easy win. You might wait for your ex-wife to file and find yourself with an easy win.
Keep in mind that I am a Michigan attorney and cannot give you detailed advice about the laws in Minnesota. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately if you need additional information or legal representation, as most parties in divorce cases do. Cordell & Cordell has an office in Tampa, Florida.
Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.