have court order, ex-wife moving with son

[superdad214]

We have a court order in place, I get more than 140 overnights/year. Our wording states my ex wife has sole primary custody in a shared parenting agreement. Everything I've read says "shared parenting" is the same as "joint custody" so I may be able to argue that. She is supposed to consult with me before making any major decisions regarding our 6 year old son; however, she recently remarried, and her new husband has a new job 12 hours away from us. Most of our family lives here, and I have a wife with a 16 month old.. we own our house... we have a stable family life. One attorney I met with wants to file an injunction.. the second wanted to go for a full custody fight. Have any of you been there before? What helped you/hurt you? What's the best course of action?? We're in SC, but I'd like to hear from anyone in any state! Thanks so much.

[Thoughts?]

What is "sole primary custody"? Not heard of that legal term. Either a person has sole decision making, or there usually is some type of joint decision making. But primary custody means they pick the child's primary residence, particularly in terms of schooling, and usually receive child support. So we can help you the most, please be very clear with your terms. Also, what state are you in?

Her move away impact will depend on your status, whether you can continue to keep the children close to their friends & in their same school district, etc.

Twelve hours away is a heck of a haul -- that's about 800 miles -- it basically means the children will have their relationships cut off from their friends.

If you can maintain continuity for the child, you can perhaps prevail. But the devil is in the details.

And again, please be very clear on your current status & order info. Thanks -- we're jsut trying to help.

[superdad214]

I agree, that's exactly what my court order says.. which is a big problem now with every new attorney I've talked to. I've searched for definitions of "joint custody" and they pretty much all mean "shared parenting".... but we don't have joint custody per our agreement. It says she has to consult with me before making any decisions.. which she didn't do. She told my 6 y/o son before she mentioned to me she was moving. That's a pretty big decision to make on behalf of our son without me. We don't live in the same school district.. but during the school year, I have him Wed afternoon through Monday morning when I drop him off at school.. every other week.. and then we split everything else in half. She works nights, and apparently her new husband (bf at the time) was taking my son to school. I think that works to my advantage.. but the atty I had before (lesson learned now) screwed me over in lots of ways. Instead of fighting for my son, he told me "she had to work sometime" so it was okay she had a night job and I shouldn't fight.. and when I got a second opinion.. he told me I was almost done with the process (after 2 years of fighting for the agreement we have now) and I should just let that atty finish it. I'm regretting that.. and hoping I can find a loophole that will help keep him here. Luckily, we have lots of extra things that may or may not matter to bring up. I'm hoping I have some sort of shot. All our family is here, including my ex-wifes.. I can't imagine a court letting him go with no one there except her and her new husband.. but I guess we'll see. Also.. I'm in South Carolina. And thanks so much for your reply!

[superdad214]

Also, I do pay child support, and it says she can make decisions, but has to consult me period before making a decision.. and esp on medical decisions.. if her dr disagrees with me/my dr, we have to get a third decision maker (my son has special needs and may need surgery in the future).. I really don't know what to do with this.. don't know much about any of it.. I'm lost!

[capslock]

Stop talking to attorneys and hire one asap. File for custody switch and injunction in the alternative?

Sounds like your ex has sole medical decision making powers which I think is going to work against your goal of changing custody. Start gathering whatever evidence you have that shows your involvement in his medical since birth. Guessing that your son's needs will be a big factor and that your ex was awarded sole decision making because she had been most involved with your son's medical since birth?

Good luck to you. I hope the move is stopped or your ex goes and leaves your son. Is there someone at your home at all times to care for him?

[superdad214]

my wife is a SAHM to our 17 month old son....

i have been there since my son's birth, but when my ex and i split up, she moved him away from me for a while and gave me every other weekend... from the time he was 2 1/2 or so, to 4... i fought that whole time to get somewhere, and i ended up getting the time i got from her (5 days every other week plus half of holidays, summers, etc) because i threatened her since he told me she was leaving him home alone to go for walks and leaving him in cars to go in stores. i have that in case i NEED To use it against her, but i'd like to go at this from a "i want my son with both his parents as much as possible" standpoint if possible...we both carry insurance on him, we both HAVE a say, though she doesn't really ask for my say... and she can't just take him given that she will violate the court order if she moves out of state and doesn't show up to our meeting place, etc.... but i'm hoping someone else has had the same sort of situation who can give some in depth advice?! thanks again for your responses!

[superdad214]

one of the attorneys we talked to recommended filing an injunction, the other recommended going for sole custody... i'm working on getting the money now and should have it within the week and that's the only reason i haven't definitely hired one... also the last one made us really uncomfortable so i'm trying to pick the right one this time and still don't feel fully confident in what i'm doing. i will hire one within the week though and make sure we can get a hearing before she leaves the state.

[hoosier_dad]

Each state has its own criteria for determining if a move away with the children should be allowed or denied. In SC there is a presumption against allowing the move so your ex has an uphill battle from the start.

This SC case is a good start in understanding the criteria the court uses to determine if the move should be allowed:

http://scholar.google.com/scholar_case?case=15615349964052129840&q=move+away+custody&hl=en&as_sdt=4,232,233

There are parallels to your case that you will help you focus your evidence and testimony in court. #1 appears to be your relationship with your son. Demonstrating your strong relationship will make it obvious that a move away will cause damage to the father son relationship. Also the court appears to have recognized that sons need fathers in their development, another check in your column. #2 appears to be local family in your location. You'll want to make it clear how much family on both sides are in your present location and how beneficial those relationships are to your son.

Your ex has the burden of proof that the move is justified and in the best interests of your son. The case I've linked above contains a paragraph with links to all the relevant case law that the SC courts use in move away cases. You'll want to read through each one to help mold your court strategy.

[superdad214]

Thanks so much for your help! Going to read through all of that right now. Just out of curiosity, do you have a background in law or have you just had lots of experience/time to learn all this? I've been sitting here for days trying to search for everything I can to help my case.. and I think I have a pretty good one built up, including statistics of father/son relationships... but I still don't feel like I have enough. Thanks again!

[capslock]

if it helps, i was told that statistics, or general data about opinions or whatever where not going to be allowed in court. you need to focus on what you have to prove YOUR involvement with your son.