RELOCATION
WHAT JUDGES NEED TO HEAR AND YOUR CHANCES THAT LITTLE JOHNNY WILL GET TO MOVE
SUE CHRISMAN FAMILY COURT COMMISSIONER FAMILY LAW CONFERENCE CHATEAU ON THE LAKE AUGUST 7, 2015
RELOCATION: THE BASICS I.
SECTION 452.377.2: Notice of a proposed relocation of the residence of the child, or any party entitled to custody or visitation of the child, shall be given in writing by certified mail, return receipt requested, to any party with custody or visitation rights. Absent exigent circumstances as determined by a court with jurisdiction, written notice shall be provided at least sixty days in advance of the proposed relocation. A. Section 452.377.1 defines “relocation” as a change in the child’s principal residence for 90 days or more. B. Section 452.377.2 states, however, that any party entitled to custody or visitation with the child must also give notice of [their] relocation. 1. The failure to give notice of a move is often evidence in proceedings because 452.377.5 specifically provides that it shall be considered a factor in determining whether custody and visitation should be modified—though that particular section refers only to the “relocation of a child.” 2. Third party custodians are not entitled to prevent relocation, but may bring cause of action to obtain a revised schedule of legal custody or visitation. Section 452.377.8. C. Notice “shall be given in writing by certified mail.” 1. This statutory requirement has been, at times, relaxed by the court system to be a requirement of “actual notice.” a. See Baxley v. Jarred, 91 S.W.3d 193 (W.D. 2002); Herigon v. Herigon, 121 S.W.3d (W.D. 2003); but see also Wright ex rel. McBath v. Wright, 129 S.W.3d 882 (W.D. 2004) (actual notice must be definite, not just I am “considering” moving); and Fleming v. Fleming, 446 S.W.3d 677 (W.D. 2014) (relocating parent must strictly comply with notice.) b. See Melton v. Collins, 134 S.W.3d 749 (S.D. 2004) (actual notice may be sufficient but must include informational requirements of statute); but see Abraham v. Abraham, 352 S.W.3d 617 (S.D. 2011) (en banc) (relocating parent must strictly comply with requirements of statute) (excellent discussion of prejudice-based analysis); and Allen v. Gatewood, 390 S.W.3d 245 (W.D.) (mother stated the move was to a 4,000 square foot home inherited by her fiancé, but provided an address to an open field and father did not then receive proper notice under §452.377— thus excusing father’s untimely filed objection to the relocation). 2
c. Conclusion: if parties have opportunity to have the case heard in court, then the adequacy of the “notice” requirement will not be that relevant. If, on the other hand, an objection to relocation was not timely filed, then the notice will be scrutinized. II.
PRODCEDURE AND TIME DEADLINES: A. Absent exigent circumstances, relocating parent shall give written notice at least sixty days prior to move. 1. Exigent circumstances must be determined by a court with jurisdiction. a. Job offer? Spouse’s job offer? b. Landlord eviction? B. Notice must include: 1. The intended new residence, including the specific address and mailing address, if known, and if not known, the city; 2. The home telephone number of the new residence, if known (what if not a land line: old cell phone sufficient?); 3. The date of the intended move or proposed relocation; 4. A brief statement of the specific reasons for the proposed relocation of a child, if applicable; and 5. A proposal for a revised schedule of custody or visitation with the child, if applicable. C. There is a continuing duty to update the information contained in the notice. §452.377.3 RSMo. D. Non-relocating parent has thirty days from receipt of the notice to file a motion seeking an order to prevent the relocation. Section 452.377.7. 1. That motion shall be accompanied by an affidavit. 2. Affidavit must set forth the specific factual basis supporting a prohibition of the relocation. 3. The relocating party SHALL file a response to the motion within fourteen days, unless extended by the court for good cause. 4. The response shall include a counter-affidavit setting forth the facts in support of the relocation, as well as a proposed revised parenting plan. E. RELOCATION DOES NOT APPLY IF THERE HAS BEEN NO PRIOR CUSTODY ORDER. 3
1. Guadreau v. Barnes, 429 S.W.3d 429 (E.D. 2014) (Mother was already living in Canada at time of the dissolution and Mother filed a Motion to Modify). 2. Day ex rel. Finnern v. Day, 256 S.W.3d 600 (E.D. 2008) (a consent PDL was not initial custody award requiring a relocation notice). 3. See also C.H. v. C.W., 412 S.W.3d (E.D. 2013) (trial court was not precluded from considering effect of move during pending litigation when making a determination of custody). F. ABSENT A TIMELY FILED OBJECTION, A PARENT WHO HAS STRICTLY COMPLIED WITH RELOCATION NOTICE HAS THE RIGHT TO RELOCATE (STATUTORY RELOCATION). 1. The non-relocating parent could still file a Motion to Modify and allege a change of circumstances. 2. The move would then be considered in the eight factor test. 3. BUT, the burden would be on the movant in the motion to modify— not the relocating parent (see below). G. IF NO NOTICE IS GIVEN AND THE PARENT MOVES THE CHILD, THE COURT SHALL: 1. Consider the failure of the notice a factor in determining whether custody and visitation should be modified (§452.377.5(1)); 2. Have a basis for ordering the return of the child (§452.377.5(2)); and 3. Have sufficient cause to order the party seeking to relocate the child to pay reasonable expenses and attorney fees incurred by the party objecting to the relocation (§452-377.5(3)). H. WHEN NO NOTICE IS REQUIRED (§452.377.4): 1. In EXCEPTIONAL CIRCUMSTANCES, where the court makes a finding that the health or safety of any adult or child would be unreasonably placed at risk by the disclosure of the required identifying information concerning a proposed relocation, the court MAY order: a. The specific address and telephone number not be disclosed; b. The notice requirements shall be waived; and c. Any other remedial action necessary to facilitate the best interest of the child. 2. PLEASE note the phrase EXCEPTIONAL CIRCUMSTANCES: there would have to be some convincing evidence that there was a grave danger for the notice requirement to be waived entirely. III.
THE BURDEN: Relocating parent must carry the burden to prove that the proposed relocation is made in good faith and that the relocation would be in the best interest of the child. Section 452.377.9.
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A. TRIAL REMINDER: At a trial, the relocating parent presents their evidence first, even though the non-relocating parent filed the initial petition and initiated the litigation—since it is their burden. IV.
GOOD FAITH A. Absent a finding that a relocating parent is moving in order to specifically interfere with the non-relocating parent’s contact with the child, a trial court will most likely determine that the move is made in good faith. 1. See McDonald v. Burch, 91 S.W.3d 660 (W.D. 2002) (trial court questions trial court’s finding concerning good faith because focus was on mother’s past actions in dissolution proceeding, specifically denying that she did not intend to relocate—but ultimately not requiring reversal on that issue due to also finding that mother failed to show that the move was in the children’s best interest). 2. See also Swisher v. Swisher, 124 S.W.3d 477 (W.D. 2003) (reversal and remand of trial court’s finding that mother was moving in bad faith because of her representations in the dissolution proceeding concerning her intent to remarry and relocate and trial court did not reach best interest test). B. Unless there is evidence that the relocating parent is attempting to alienate the non-relocating parent, a court will most likely find that the move is made in good faith. (That is not to say that the move is objectively reasonable or a good idea.)
V.
BEST INTEREST ANALYSIS: Section 452.375.2 Prior to 1998, when the legislature amended the relocation statute to include the standard by which a court should determine whether relocation should be allowed, courts had relied on a four-part test found in Michel v. Michel, 834 S.W.2d 773, 777 (Mo. App. S.D. 1992): 1. The prospective advantages of the move in improving the general quality of life for the custodial parent and child (absent the “custodial parent” reference, this could be construed as “best interest” analysis; 2. The integrity of the custodial parent’s motives in relocating (whether primarily to defeat or frustrate visitation and whether the custodial parent is likely to comply with substitute visitation orders) (“good faith” and “factor four” analysis); 3. The integrity of the noncustodial parent’s motives for opposing relocation and the extent to which it is intended to secure a financial advantage with respect to continuing child support; and 4. The realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent’s relationship with the child if relocation is permitted (factor two analysis).
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In 2001, the Missouri Supreme Court declared that the four-part Michel test was no longer to be applied. Stowe v. Spence, 41 S.W.3d 468 (Mo. 2001). A. THE EIGHT FACTOR BEST INTEREST TEST: 1. The wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties; 2. The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child; 3. The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interest; 4. Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent; 5. The child’s adjustment to the child’s home, school, and community; 6. The mental and physical health of all individuals involved, including any history of abuse of any individuals involved; 7. The intention of either parent to relocate the principal residence of the child; and 8. The wishes of a child as to the child’s custodian. B. RELOCATION IS FACT-SPECIFIC!! For an attorney with a client who is involved in a proposed relocation—whether representing the parent seeking to move or the parent seeking to have the court deny the move, it is imperative that you determine which facts aid your client (and which do not). VI.
CASE ANALYSIS: A. DISCLAIMER!! The materials include my review of the appellate cases since 2001, when the Michel four-part test ended. The review also includes some orders that were not appealed. The orders came from other judges to whom I reached out and asked if they had any noteworthy cases, as well as from my own computer directory. From my analysis of the appellate decisions and the unpublished orders, I pulled the relative information that I believed led to the eventual decision. I tried to categorize three areas that I believe impact a court’s decision: the distance of the move, the age of the children and the reason for the proposed move. I then added the factors that I believe the court relied on to either deny or allow the move. Please note that it is a SUBJECTIVE review. Some decisions were more easily analyzed than others. Some had tangential issues—which may or may not have been relevant. Finally, though more “denied” decisions are noted, that may be strictly as a result of more “no” decisions having been appealed.
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RELOCATION ALLOWED
MEHLER v. MARTIN, 440 S.W.3d 529 (Mo. App. E.D. 2014) St. Genevieve County
RELOCATION ALLOWED
Move was from Ste. Genevieve to Eureka–no notice because Mother said they had agreement–which Father reneged on. The move was to be closer to her new husband’s job following the foreclosure on their home in St. Genevieve. Mother was more involved with children and attended their activities more frequently; Father’s sporadic work schedule interfered with his ability to be involved; Father discussed case with children and had attempted to bribe children with offer to building a swimming pool; and Father had significant anger issues. Distance Relatively short (62 miles)
Age of children Older
Reasons Job/Loss of home
Factors 2, 4, 6 (focused on involvement mostly)
HENRY v. HENRY, 353 S.W.3d 368 (Mo. App. S.D. 2011) New Madrid County RELOCATION ALLOWED Mother initially moved from New Madrid County to Memphis with three year old child. Father initially objected– but then agreed. Original judgment provided extensive parenting time for Father including weekends and two overnights during week. After living only about a month in Memphis, Mother met McCormick, who was a lawyer. After dating only a few months, they began discussing marriage. At the first of 2010, Mother lost her rental home because of foreclosure and McCormick was offered a transfer to Atlanta, Georgia–where he previously had lived and where he owned a house. McCormick accepted the transfer–Mother gave a two week notice–and the couple moved to Georgia. Court found “exigent circumstances” justified short notice; that relocation was okay because Mother had been primary caregiver; that Father had not exercised all of his summer parenting time when child still lived in Missouri; and child would benefit from increased standard of living. Distance Medium (7.25 hour drive)
Age of child Young
Reasons Boyfriend’s job
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Factors 2, 4, 5
ROBINSON v. ROBINSON, 338 S.W.3d 868 (Mo. App. W.D. 2011) Jackson County RELOCATION ALLOWED During dissolution, Mother sought permission to move to Columbia, where her parents live. Father had left Mother two months after child was born, was living with his girlfriend and did not pay child support. Father relied on his parents to provide place where he could exercise his parenting time–which he sometimes did not take advantage of and left to go spend time with his girlfriend. Mother had always been primary caregiver of child and had supported child’s relationship with Father and his parents by providing all transportation to Father’s parent’s home. Mother could have opportunity for job advancement in Columbia and her parent’s support was important. Trial Court: No stable home for Dad–no financial support for child–had not exercised all of his parenting time.
Distance 2 Hour Drive
Age of child Very Young – not school age
Reasons Closer to family and job advancement
Factors 2, 3
WIGHTMAN v. WIGHTMAN, 295 S.W.3d 183 (Mo. App. E.D. 2009) St. Louis County
Trial Court Denied but REVERSED ON APPEAL
Mother was a personal injury attorney, who sought to relocate to North Carolina, where some of her family resided. She maintained she had better job prospects there and that her husband would have a better job as well. Trial Court denied, finding that she would have better job prospects in Missouri because of her contacts, that her husband’s salary would increase very little in North Carolina, and that Father would be “cast out” of children’s lives. Appeals Court (J. Richter) reversed–saying that Mother’s testimony was sufficient (and only) evidence that Court received about her job prospects; that Father had not exercised all of his parenting time (“sporadic” as characterized in opinion); Father had been prosecuted twice for criminal non‐support; and Mother had “thoroughly researched” Raleigh area to show children’s recreational and educational opportunities. Distance Missouri to North Carolina
Age of child Elementary
Reasons Closer to family (alleged job)
Factors 2, 3, 5
ISAKSON v. ISAKSON, 277 S.W.3d 784 (Mo. App. S.D. 2009) Phelps County
RELOCATION ALLOWED
Mother wanted to relocate from Rolla to Nixa, during the divorce. Court allowed move. Father failed to spend time with the children and Nixa had “excellent educational opportunities.” It is worth noting that during divorce, Husband had engaged in misconduct by diverting marital assets and incurring enormous debt for gifts and trips for his paramours (plural).
Distance 2 Hour drive
Age of children ?
Reasons Mother’s education
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Factors 2, 5
HUECKEL v. WONDEL, 270 S.W.3d 450 (Mo. App. S.D. 2008)
Stoddard County
RELOCATION ALLOWED
Mother wanted to move from Dexter to Bell City. One child was having behavior problems and Mother believed smaller classrooms would help. Mother and Father did not co‐parent well. Father had refused to cooperate on medical issues. Trial Court found that Mother had been the primary caregiver and that she was willing to give Father significant periods of visitation. There was also no evidence that the child had not adjusted to his new home–to which Mother had moved prior to the trial. Distance Dexter to Bell City (30 minute drive)
Age of children Elementary
Reasons School change/ smaller classrooms
Factors 2, 3, 5
RATTEREE v. WILL, 258 S.W.3d 864 (Mo. App. E.D. 2008) St. Louis County
RELOCATION ALLOWED
Mother wanted to move to San Francisco. Her employer eliminated her position in St. Louis–but a better position was available in San Francisco. Her sister lives in San Francisco. While all other relatives were in St. Louis, the Trial Court found that Father had no stable home, and was financially irresponsible. Father did not exercise all of his parenting time with child until Mother became engaged. Mother packed clothes and food for child when he was going to be with Father. Father returned bag full of dirty clothes. Father routinely ate out with child rather than preparing meals. Vocational expert hired by Father did not know Mother’s educational background. Distance Very Long St. Louis to San Francisco
Age of child Young (not yet elementary)
Reasons Job/Family
Factors 2, 3
JOHNSTON v. DUNHAM, 172 S.W.3d 442 (Mo. App. 2005) Benton County – Warsaw
RELOCATION MOOT – moved without permission – Trial Court made Dad residential parent.
Three children–13, 12 & 11–Joint legal/physical–Dad had alternating weekends every Tuesday or Thursday, even every weekend in June, and all of July. Both lived in Warsaw after divorce–within a few blocks of each other. Mom wanted to move to Harrisonville. After Dad objected, Mom married man who lived in Harrisonville and in July, moved to Harrisonville. Her lease was up in Warsaw–and rather than renewing her employment, she found a job in Harrisonville. The trial was set for August, but the Judge recused, no new trial was set–so mom moved the kids to Harrisonville. Trial was held the next year and Court modified custody for the children to live with Dad–finding move was a change of circumstances. Distance Relatively short (69 miles)
Age of children Teen and preteen
Reasons New Marriage
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Factors (infer) 2, 3, 5
DORMAN V. DORMAN, 91 S.W.3d 167 (Mo. App. W.D. 2002) Pettis County RELOCATION ALLOWED Mother wanted to move from Sedalia to Grand Forks, North Dakota. Mother had remarried to military husband– who was transferred to new post after his return from overseas duty. Mother was child’s primary caretaker–had taken child to all doctor’s appointments and been the parent to attend teacher conferences. Father did not call child daily. Stepfather DID call child every day from overseas. Mother was pregnant with half sister and child in question was outgoing so that he would adjust to new location. Distance Medium‐Long (11.5 hours)
Age of child Young
Reasons Husband – military assignment
Factors 2, 3, 4
LOEBNER V. LOEBNER, 71 S.W.3d 248 (Mo. App. E.D. 2002) St. Louis County RELOCATION ALLOWED Mom moved from Brighton to St. Peters. She wished to move because the government was buying up homes in her area and the area was deteriorating. Father lived in Maryland Heights–but Mother could not afford a home there. The new location was 20 minutes further. The child’s new school was further from Father and he would lose time because he picked up the child from school each day and provided child care after school. Mother did not give 60 days notice, but that was justified. Trial Court found that Mother was not in contempt and that relocation should be granted. As a side note, Trial Court had entered a modification of parenting time that reduced the amount of time Father spent with the child on Jewish holidays–which the Appeals Court reversed because there was no finding that a “restriction” of his parenting time was warranted under 452.400. Distance Very short (20 minutes)
Age of child Young
Reasons Better home
Factors 2, 5
DELOTELL V. REMAKLUS, 95 S.W.3d 107 (Mo. App. E.D. 2001) RELOCATION ALLOWED St. Louis County Father, who had custody, wanted to move to California. His wife had already moved to take over her family’s business. She was the only one who had expertise sufficient to run the business. (Side note: Father had taken his wife’s name.) Father was a real estate agent and anticipated he would have increased income in California. Mother had not been significantly involved in child’s education and did not consistently exercise her weekend visits–though she did exercise summer and holidays. There was a direct flight available for child to return to Missouri. Child was happy in Father’s home–where she had lived in that family unit since she was six. Distance Great Missouri to California
Age of child 10 years old
Reasons Spouse’s employment
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Factors 2, 3, 5
WEAVER V. KELLING, 53 S.W.3d 610 (Mo.App. W.D. 2001) Clay County RELOCATION ALLOWED Mother and Father divorced in 1995. They had three children. Father had frequent contact including one overnight each weekend. He frequently attended children’s sporting activities during the week. In 1997, Mother sought modification to move to an alternating weekend schedule. In April of 1998, Mother remarried. In October of 1998, Mother’s husband accepted a promotion requiring him to transfer to Texas. He had been employed with the company for 19 years. In 1999, Trial court allowed relocation finding that Mother had always been primary caregiver and that her husband’s new job would allow her to be stay‐at‐home mom. Back and forth schedule had been hectic and trial court found that move might help communication. Father would receive significant contact during school holidays and summer. (Trial Court obviously thought mom was better parent.) Case was originally remanded due to trial court’s failure to include findings. Distance Medium‐Long (11 hour drive)
Age of children Various
Reasons Spouse’s employment
Factors 2
CULLISON V. THIESSEN, 51 S.W.3d 508 (Mo. App. W.D. 2001) Vernon County RELOCATION ALLOWED Mother and Father divorced in 1988–with two children. In 1997, Mother sought to have Father’s child support increased. He then sought to have his visitation decreased–from alternating weekends to only one weekend per month. Father did not object to Mother’s relocation to Colorado. Mother drove the children to Missouri for his weekend visits. Father then filed a Motion to Modify and Mother returned to Nevada, where she also filed a modification. While motions were pending, Mother remarried and her new husband moved to Ohio to pursue business interests. Trial court found children had a strong bond with Mother and not with Father. The children wanted to live with Mother and were capable of adjusting to new home. Mother could work from home if relocation were allowed. Distance Medium‐Long (12 hours)
Age of children Various
Reasons Spouse’s employment
Factors 2, 5
ROMANETTO V. WEIRICH, 48 S.W.3d 642 (Mo.App. W.D. 2001) Macon County RELOCATION ALLOWED Couple divorced in 1988 and Father was granted custody of 3 year old son. When the child was 11, Mother became primary physical custodian. Within 2 months, Mother informed Father she wanted to move from Moberly to Ohio due to her husband’s job transfer. Though Father did not file objection to relocation, he did file a Motion to Return Child to Missouri and Motion to Modify. Trial court found relocation to be in child’s best interest. Child had better behavior, health and school performance since he lived with Mother. Father was an alcoholic, had encouraged child not to take medications for ADD, and he had been investigated for abuse against his subsequent wife and one of her sons. Distance Medium‐Long (9.45 hour drive)
Age of child Teen
Reasons Spouse’s employment
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Factors 2, 5, 6
GLADDING V. KELL, 53 S.W.3d 203 (Mo. App. E.D. 2001) RELOCATION ALLOWED St. Louis County Mother wanted to move to Florida to be with her husband, who had taken new employment, which was described as a “chance of a lifetime.” The children, ages 11 and 13, wished to move. Father had his visitation reduced from time allotted in divorce because he did not exercise all the time available. Mother would be able to continue to be home with children. Even though some evidence was presented that Florida schools might not be as good as Parkway schools, trial court found that Mother would ensure that children would have best education possible – including, if necessary, enrolling them in private school. Distance Long (15 hour drive)
Age of children Teen, preteen
Reasons Spouse’s employment
Factors 2, 8
ABERNATHY V. MEIER, 45VS.W.3d 917 (Mo. App. E.D. 2001) St. Louis County RELOCATION ALLOWED Mother was allowed to move to New Hampshire for a better job. While a Judgment of Paternity had given Father extensive time with the child, problems developed. Child did not want to go with Father–ultimately resulting in Father slapping child. A child protection order was requested by GAL–Father’s overnights were suspended and the parents attended counseling. Father’s overnights were restored and three months later, Mother notified Father of her new job. Trial court found that her job opportunities were greater–which would lead to her greater job satisfaction and have a positive effect on the child. Court found the schools were comparable or better and that Father could still have meaningful time with the child by flying back to Missouri for visits. The child’s previous strained relationship with Father was mentioned–as well as Mother’s continual encouragement of child’s relationship with Father. Distance Long (20 hour drive)
Age of child Young
Reasons Employment
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Factors 2, 6
________________________________________________________________ UNPUBLISHED ORDERS—NOT APPEALED
DAD v. WNH, (2014) RELOCATION ALLOWED Greene County At the time of the Paternity Judgment, Father lived in Florida. Provisions in the Parenting Plan provided differing parenting times dependent upon the distance of the parent’s home. Mother has been the primary caretaker of the child throughout his life. Mother worked in the hospitality field, but lost one job when the business closed. Mother had a long‐time boyfriend who was in the hail‐repair field. His job required travel. He asked for a promotion and was given a job as a manager in Oklahoma City. Mother was then offered a position if she completed training. Father did not object and kept the child while Mother did the training. Father now goes to school at the University of Missouri‐Kansas City. Mother is an account executive at the hail repair facility. Mother’s new job will afford her greater financial stability. Her new schedule allows her to be at home with the child during the evenings—something she could not do at her prior employment. Mother’s mother lives in Dallas and living in Oklahoma City will afford a greater opportunity to see the child. The child has a close relationship with his paternal grandmother. Mother has tried to afford Father time with the child when possible. Distance Oklahoma City (4.25 hours)
Age of child 5
Reasons Better income‐boyfriend
Factors 2, 4
Greene County
ELM v. TJM, (2014)
RELOCATION ALLOWED
Mother wanted to move to Denver, Colorado. She was a nurse and could easily find a higher‐paying position. She had suffered pay decreases in her job in Springfield since the time of the Judgment. She had asked Father to help her financially but he had not. In addition, Father’s new paramour had been harassing to her and Mother wanted to put some distance between them. Father had been unstable at times—though he was stable by the time of the trial. Father had relocated some two hours away from Springfield prior to the trial. Mother has always been cooperative with Father in arranging parenting time. The relocation does not decrease Father’s parenting time. Distance Denver, Colo. (12 hours)
Age of child 5
Reasons Employment/ Good schools
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Factors 2, 4, 6
JLA v. KDB, (2013) Greene County
RELOCATION ALLOWED
Mother wanted to move to Monett due to her recent marriage. Her now‐husband has two older children who attend school in Monett. Her husband is self‐employed selling fitness equipment. Mother is employed at Jack Henry in Monett. Father works at a job that allows him to be off during the early afternoon. Father and Mother have had trouble co‐parenting. Father refuses to pull into the driveway to pick up the minor child. After a request to sign off on a vehicle, one exchange resulted in Father driving off with Mother clinging to the door. Father insists that the minor child shed all of Mother’s clothes upon her arrival at his apartment. Father is able to pick up the child from school and frequently volunteers at the school. The child has a close relationship with the paternal grandmother. Mother has exhibited more constructive parenting attributes than Father. Distance Relatively close (Monett) (45 miles)
Age of child 10
Reasons New Husband
Factors 2
Greene County
TT v. LT, (2013)
RELOCATION ALLOWED
Father works as an airline pilot with a base in Atlanta, though he technically lives in Springfield. Mother works as a nurse. Both Father and Mother have irregular work schedules, over which they have little control, and the child spends a lot of time in childcare. Mother has tried to arrange her shifts to accommodate Father’s time in Springfield. Father has not communicated well with Mother and has been immature at times—such as being upset when Mother’s boyfriend did not introduce himself, though Father took no initiative either. Mother had an opportunity for a normal working schedule that will greatly benefit the child by working as a school nurse. The new job will pay more, which will benefit the child. Mother’s new employment is close to the home of her boyfriend. Distance Springfield to Peculiar, (2.5 hour drive)
Age of child 3
Reasons Employment with better hours/boyfriend/family
Factors 2, 4
ALL v. DM, (2008)
Greene County
RELOCATION ALLOWED
Father had little involvement in the children’s lives when the couple was still together and limited contact since the Paternity Judgment was entered. Father had supervised visits at the children’s grandparent’s home. Mother wanted to move to Harrison, Arkansas, because of her fiancé and educational opportunities. Mother has actively parented the minor children and does encourage the girls to speak with their father on the phone. Mother has offered to provide all transportation. Though Father will lose some opportunities for connection with school activities, an expanded contact schedule will actually be beneficial. Distance Harrison, Arkansas (1.25 hour drive)
Age of children 4 & 6
Reasons Fiancé/Education
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Factors 2
Greene County
TLP‐W v. JCW, (2008)
RELOCATION ALLOWED
Mother had accepted a position teaching at Notre Dame. Father lived in St. Louis. He had moved from Springfield shortly after the dissolution. The drive from St. Louis to South Bend, Indiana, is significantly longer than the drive to Springfield. Father did not file a Motion to Modify—seeking a change of custody, in spite of the fact that Mother had already moved. Ultimately, the Court found that it must judge the situation as it exists— with Mother being the residential parent. The Court found that the child will be exposed to a more culturally diverse community and will receive an advantage of a tuition credit should he choose to attend Notre Dame. Distance South Bend, Indiana (9.25 hour drive)
Age of child 5
Reasons Career
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Factors
RELOCATION DENIED
PASTERNAK v. PASTERNAK, 2014 WL 4084862 (Mo. App. E.D.) St. Francois County
Trial Court Allowed—Reversed on Appeal DENIED Now on Transfer to SCT.
Both parents were teachers in Farmington. Mother lost her job (perhaps, intentionally) and sought move to Silva, 56 miles away. Father had weekly Wednesday overnight and extended alternate weekends (Sunday overnight). Father was heavily involved in children’s activities. One child had I.E.P. Parents were high conflict. Mother’s family lived in Silva and Silva was closer to her boyfriend. Her job teaching at Silva paid less. Mother stated the move was in children’s best interest because they had smaller class sizes in Silva and that greater distance between Mom and Dad would be better because of conflict. Appeals Court found children were attached to their current home and community; that the I.E.P. was working well in current school; and that move–though not great in distance–would greatly diminish, if not entirely eliminate, Father’s ability to participate in children’s activities. Distance Relatively short 56 miles
Age of children Elementary
Reasons Job/Family
Factors 2, 3, 5
ALLEN v. GATEWOOD, 390 S.W.3d 245 (Mo. App. W.D. 2013) DeKalb County
RELOCATION DENIED
Mother gave intent notice without correct address, causing Father’s delay in investigating proposed new home. Notice specified 4,000 square foot home. In reality, it was a modular home–in which Mother and child would reside with her fiancé and his mother. Court denied the relocation finding that even though the change in distance was slight (26 miles)–it would interfere with Father’s ability to exercise two mid‐week parenting times. Further, Mother failed to consult Father prior to enrolling child in new school district and listed only herself on school form as having the right to make legal decisions. Child was well‐adjusted in his current community.
Distance Short 26 miles
Age of child Elementary
Reasons Fiancé/Husband
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Factors 2, 4, 5
MITCHELL v. MITCHELL, 348 S.W.3d 816 (Mo. App. S.D. 2011)
McDonald County
RELOCATION DENIED
Mother wanted to move from McDonald County to Grove, Oklahoma. Move would not affect Father’s parenting time, according to Mother. Court had already denied the relocation once–but Mother purchased a home in Grove and sought permission again. One child had I.E.P. and Court found that Mother failed to show child would be better off in Grove schools–which had similar benefits. Father had spent significant time with children outside of his parenting time by visiting them at school, attending school functions and eating lunch at school. Father had offered to take the children to medical appointments–but Mother had refused. Children had many extracurricular activities in McDonald County–they had been involved in sports–but Mother restricted that after first relocation was denied. Distance Short (29 miles)
Age of child Elementary
Reasons Closer to her job
Factors 2, 3, 5
HENDRY v. OSIA, 337 S.W.3d 759 (Mo. App. E.D. 2011) Washington County
RELOCATION DENIED
Mother sought move in 2007–which was denied (260 S.W.3d 438). She again sought permission for move to Imperial, Missouri, about 50 miles away. Father was coach of baseball team and saw children four to five days each week. Though there may have been better services for child with learning disability at new school, current school offered “similar services.” (See Mitchell, 348 S.W.3d 816 for opposite holding). Trial Court relied on Father’s involvement with children and their involvement in extracurricular activities to deny relocation. Father’s Motion to Modify had been granted–but that was reversed on appeal. Appeals Court found no change of circumstances because trial court relied on Mother’s intent to relocate for change of circumstances, which was ultimately denied.
Distance Fairly close 50 minute drive
Age of children Young – not specified but elementary?
Reasons Not specified
17
Factors 2, 5
CORTEZ v. CORTEZ, 317 S.W.3d 630 (Mo. App. S.D. 2010) McDonald County
RELOCATION DENIED
Appeals Court focused on whether Mother had absolute right to move since Father filed his Motion to Prevent 59 days after notice. Appeals Court found that Mother’s notice was deficient. Since Mother had not appealed the decision itself–Appeals Court did not address that issue. Mother relocated to Dallas, Texas. Trial Court denied relocation. Father had almost daily contact with child at school and provided after‐school care for child three to four times a week. Father was Vice President of Parent Teacher Partnership. Mother’s move was premised supposedly upon a doctor’s advice to quit her job because of carpal tunnel syndrome, her desire to go to school (and Noel did not offer Spanish GED classes) and her mother’s illness (who was actually her grandmother and who lived in Mexico). By the time of the hearing, the “mother” had passed and Mother was pregnant by illegal alien from Mexico.
Distance Noel, Missouri to Dallas (6 hour drive)
Age of child Elementary
Reasons Closer to Friends and Family
Factors 2, 3
MANTONYA v. MANTONYA, 311 S.W.3d 392 (Mo. App. W.D. 2010) Henry County RELOCATION DENIED
Mother sought move only 15 miles away to move into home with her new husband. She had been living in a two bedroom apartment in Clinton. One child was in elementary school–the other would be starting. Father objected, simply based on the change of schools. Trial Court found Mother failed in her burden–because she offered no evidence regarding new school. Just because she could be “stay‐at‐home” mom with new husband– no evidence was offered that she could not do that in Clinton–supposing that new husband could move. This case had no findings and Appeals Court had lengthy discussion as to whether that was required–ultimately– and after many gyration—concluding that findings were not required. Distance Very short (15 miles)
Age of child Elementary
Reasons Remarriage
Factors 5
BYRD v. STEGGALL, 296 S.W.3d 25 (Mo. App. W.D. 2009) Andrew County – St. Joseph
RELOCATION DENIED
Mother wanted to move to Iowa to move in with her fiancé–now husband. Though Mother had “sole physical custody,” Father had equal parenting time. He regularly exercised his parenting time. Trial Court found that move would interfere with Father’s weekly parenting time. Father’s wife–who was Assistant Principal in St. Joseph, testified that child was in best school. Distance 175 miles
Age of child Elementary
Reasons Mother’s Remarriage
18
Factors 2, 5
LOWERY v. LOWERY, 287 S.W.3d 693 (Mo. App. E.D. 2009) St. Louis County
RELOCATION Allowed—Reversed on Appeal—DENIED
Mother and Father met while very young in Florida, where everyone lived. Father’s family moved to St. Louis so that Father’s mother could pursue LLM. Father and Mother moved with them since they were financially dependent. After separation of Father and Mother, Mother wanted to move back to Florida where her family resided. She did not have a home or job in Florida–but testified she would stay with her mother and thought she could get a job where she had worked previously. Trial Court criticized Father still living with his parents and his purchase of a Harley. Trial Court felt it was unfair to deny Mother support of her own family so allowed move. Appeals Court reversed. Said move was speculative and could be denied on that basis alone. The Appeals court noted the CLOSE bond with paternal grandparents and did not like the unrealistic Parenting Plan. Distance Missouri to Florida
Age of child Young
Reasons Closer to Family
Factors 2, 5
BUCK v. BUCK, 279 S.W.3d 547 (Mo. App. S.D. 2009) Lawrence County RELOCATION DENIED
Mother wanted to move from Verona to Republic. Children’s address was actually Father’s address–but she wanted to change it to her address. She did not have employment in Republic. Trial Court relied on Father’s contact with the children. He attended all parent/teacher conferences; coached his daughter’s teams; assisted with homework; and had Wednesday–Sunday parenting time. Distance Relatively short Verona to Republic (24 minutes)
Age of children Elementary
Reasons Financial – layoff from employment
Factors 2, 3, 5
VAUGHN v. BOWMAN, 209 S.W.3d 509 (Mo. App. E.D. 2006)
St. Genevieve County
RELOCATION DENIED Mother wanted to relocate from Ste. Genevieve to De Soto–where her fiancé had job prospects. Prior to this fiancé, Mother had live‐in boyfriend who was charged with child molestation. Trial Court found that Father only goes without seeing child for two days; that child had contact with both sets of grandparents in her current home; that Mother’s boyfriend did not actually have a job in De Soto; that child was engaged in extracurricular activities and well‐adjusted to Ste. Genevieve community. Distance Ste. Genevieve to De Soto (8 hour drive)
Age of child 9 (Elementary)
Reasons Fiancé’s Job
19
Factors 2, 5
SCHLOTMAN v. COSTA, 193 S.W.3d 430 (Mo. App. W.D. 2006) RELOCATION Allowed but Reversed due to lack of Platte County findings so DENIED Joint legal and physical–Dad had alternating weekends–4 weeks in summer–lived in Weston–relocation to Durham. New husband was stationed there. If she was allowed to relocate, Mom could be stay at home mom. No ultimate conclusion by Appeals Court because of lack of findings. Distance Long (17 hours)
Age of child Elementary
Reasons New Husband’s Job
Factors
CLASSICK v. CLASSICK, 155 S.W.3d 842 (Mo. App. S.D. 2005) Greene County RELOCATION DENIED Mom wanted to move to Ohio with kids, 12, 10 and 10 (twins). The family had moved often prior to divorce but the family had moved to Springfield with a view at making it a permanent residence. Marriage was dissolved after Mom met someone else–whom she subsequently married. New husband lived in Ohio–though he had tried to find comparable employment in Springfield. Under Parenting Plan, Dad had 3 weekends each month and 3 weeks in summer. After the divorce, Dad purchased a home seven houses away from Mom to be near the kids. He always exercised his time and spent extra time when possible. He was heavily involved in extracurricular activities. The children were doing well in school and had lots of friends. Trial Court found that Dad’s significant involvement would be destroyed if children moved to Ohio. Distance Medium‐Long (11 hours)
Age of children One preteen & 2 elementary
Reasons New Husband’s Job
Factors 2, 3, 5
LOFTIS v. LOFTIS, 148 S.W.3d 315 (Mo.App. S.D. 2004) RELOCATION DENIED–Mother had to move back Ozark County – Gainesville within 75 miles of Father’s home At time of divorce, Mom had already planned move to Granite City, Illinois, where her boyfriend lived. Child was very young and an agreed‐upon Parenting Plan was entered giving each parent alternating 2 week custody period, but no residential parent was named. Exchanges were in Rolla. Mother married in early 2002 and Dad filed Motion to Modify wherein he sought sole legal and physical custody of the now almost 5 year old child. Mom filed a Counter Motion. Court denied Mother’s relocation and found that Mom should live within 75 miles of Dad. Mother did not appeal the relocation decision. She complied and moved to Hollister. Dad’s appeal of custody award to Mom was overruled. (Not really a relocation case—since the move was contemplated in the original custody plan). Distance Medium (4 hours)
Age of child Young
Reasons New Husband
20
Factors 2 ,3, 5
FOHEY V. KNICKERBOCKER, 130 S.W.3d 730 (Mo. App. E.D. 2004) RELOCATION Allowed–Reversed on Appeal so DENIED Marion County – Hannibal Mother wanted to relocate to Ft. Worth for a better job. Father was actively involved with child, all of child’s grandparents lived in Hannibal. Child lived in house in good neighborhood. In Texas, child would live in apartment. Mother did not know what daycare or school child would be attending–nor could she say specifically how a better job would benefit the child. Trial Court allowed–but Appeals Court reversed, finding no substantial evidence that move would be in child’s best interest. Distance Ft. Worth—Great (11.25 hours)
Age of child Young
Reasons Employment
Factors 2, 3, 5
SWISHER V. SWISHER, 124 S.W.3d 477 (Mo. App. W.D. 2003) RELOCATION Denied on Bad Faith— Jackson County Appeals REVERSED Mother sought to relocate to join her new husband in Oklahoma. Divorce was granted October 19, 2001. January 7, 2002–Father received a notice of relocation. Trial Judge who heard dissolution trial also heard relocation. Trial Judge denied relocation based upon Mother’s assertions in dissolution trial that she had no “present” intent to remarry or move with children. Trial Judge held that Mother had misled the Court while that might be true, Appeals Court said that is not what “good faith” means–that it is simply the why of moving, not about when the intent was formed. It reversed the Trial Court–which may have had the final say–because it did not reach “best interest” test – that would be taken up on record. Distance Medium (5.5 hours)
Age of children Young
Reasons New Husband
Factors BAD FAITH‐No Best Interest Test
HERIGON V. HERIGON, 121 S.W.3d 562 (Mo. App. W.D. 2003) Platte County RELOCATION DENIED Mother wanted to move to Pennsylvania. Father saw the two children–now teenagers–every weekend and was actively involved in their daily lives. No reason given for move–but reference made to Mother becoming stay‐at‐ home mom and increased income. Inference is that Mother found a paramour. Children were well‐adjusted in school and community. Children did not want to move. Distance Pennsylvania—Great (16.5 hours)
Age of children Teens
Reasons Boyfriend?
21
Factors 2, 5, 8
MCDONALD V. BURCH, 91 S.W.3d 660 (Mo. App. W.D. 2002) Platte County RELOCATION DENIED Mother sought to relocate to Texas with the two young children. Mother started dating Texas man before divorce was final–though she HAD testified under oath that she had no boyfriend in Texas. She married Texas boyfriend five months after divorce. Trial Court found she lacked good faith and relocation was not in children’s best interest. Appeals Court upheld Trial Court’s decision that proposed move was not in children’s best interest but did not necessarily agree regarding findings of bad faith. Father was active parent. Mother had a history of failed marriages and unstable housing. The maternal family lived in the Ft. Worth area–but they were not a particularly good influence. Mother’s brother was convicted of a sexual offense involving a minor. The maternal grandmother was an alcoholic and had her own issues with stable housing. Mother’s new husband had lived in ten homes since he was 21 and had been employed in several fields. He had not sought employment in the Kansas City area.
Distance Medium‐Long (11.25 hour drive)
Age of children Young
Reasons Moved to get married
Factors 2, 3, 5
DIXON V. DIXON, 62 S.W.3d 589 (Mo. App. W.D. 2001) Clay County RELOCATION DENIED Mother was a certified respiratory therapist and lost her job when the hospital closed. Mother testified she could not find a job in the Kansas City area and found a job instead in Muskogee, Oklahoma–where her family resided. Father objected and Mother moved anyway–testifying that she had to or would lose her job. She had been on public assistance while still in Missouri. Father still had alternating weekends–but could not have Wednesday visits. Mother did give him extra time over Christmas. Trial Court found that she had relocated in bad faith. Father introduced evidence of multiple certified therapist jobs available in Kansas City. Mother had insisted on earning $25 an hour. Jobs in Kansas City paid $15 an hour–which is what Mother earned in Oklahoma. Child spent 12 hours in daycare in Oklahoma. Child had a good bond with Father’s new wife.
Distance Medium (5 hour drive)
Age of child Young
Reasons Job/family
22
Factors 2, 3, 4, 5
DEVORE V. DEVORE, 62 S.W.3d 559 (Mo. App. S.D. 2001) Jasper County RELOCATION DENIED Parties divorced in 1994. They had a two year old son. Mother and Father both remarried. Mother and her husband moved to Carl Junction. Father and his wife built a home in Carl Junction to be close to child. Mother’s husband was a grocery store manager–ultimately losing his job when his store chain closed. He found a new job– earning substantially more money. This allowed Mother to quit work. He had to move to Lawton, Oklahoma– though at first he believed he would be in Southeast Kansas. Mother moved with the child when their home in Carl Junction was purchased. Father always had a close bond with child and attended every school function or athletic event. Trial Court found notice for moving was suspect because Mother and her husband never explored alternative employment in Joplin area–despite Mother’s husband being approached by Walmart for possible employment. Distance Carl Junction, Missouri to Lawton, Oklahoma (4.75 hour drive)
Age of child Young
Reasons Spouse’s employment
Factors 2, 5
BRETHORST V. BRETHORST, 50 S.W.3d 864 (Mo. App. E.D. 2001) St. Louis County RELOCATION DENIED Mother moved to North Carolina to accept a promotion with her employer, IBM – who was “downsizing” in St. Louis. Mother’s “gentleman friend” also moved to North Carolina with her. Father was a police officer who was actively involved in children’s activities. He coached their soccer and baseball teams. Mother and Father had cooperated to maximize his ability to see the children to coincide with his days off. A move to North Carolina would negatively impact this flexibility to see the children or his comp. time because he often worked holidays. Distance Long (13 hour drive)
Age of children Young
Reasons Promotion at employment
23
Factors 2, 3, 5
UNPUBLISHED ORDERS—NOT APPLEAED
KLR v. JG, (2015) Greene County
RELOCATION DENIED
Mother wanted to move from Springfield to Georgia in order to live with her new husband. Mother had stayed in Missouri while the litigation was pending. Mother had a long‐standing relationship with her husband prior to their marriage. She and her new husband have two children. Father has been an involved parent, especially in the children’s education. Almost all of the extended family live in Missouri—rather than Georgia. The children have a particularly close relationship with their maternal grandparents with whom they spent extensive time both before and after school. The oldest child expressed that she did not want to move. The youngest two children also stated they do not wish to move—though Mother believes this is rooted more in a fear of change. Distance Georgia (13 hours)
Age of children 14, 11 & 9
Reasons New Husband in military
Factors 2, 3, 8
RAS v. CRM Greene County (2014)
RELOCATION DENIED
After protracted litigation, a Judgment of Paternity was entered in early 2014. Father lived in Oklahoma and Mother lived in Springfield. The parenting plan provided for Father to have every other weekend contact. At the paternity trial, Mother had opposed the every other weekend schedule—maintaining that it was too much travel for the child. Shortly after the Judgment, Mother announced her intention to move to Dallas. Mother’s proposed visitation schedule was the one‐weekend a month that she had wanted in the original proceeding. Her stated reasons for moving was to “pursue career opportunities and to be closer to family.” Mother had graduated with a degree in hospitality management. Mother did not conduct an exhaustive search for jobs in Springfield and the trial court did not attach credibility to her testimony that she had. Father had been an involved parent and complied with all of Mother’s demands on a restrictive schedule prior to the Judgment being entered. His job hours allowed him to travel to Springfield to participate in after school activities—but he would not be able to do that if the move was allowed. The child had a close relationship with maternal relatives in Springfield and Father’s relatives in Oklahoma, which would be diminished if Mother moved. The Court found Mother’s past behaviors indicated she would not be the parent to allow the other parent additional time. Distance Springfield to Dallas (7 hours)
Age of child Young
Reasons Job—Family
24
Factors 2, 3, 4, 5
Greene County
SWR v. JSW, (2013)
RELOCATION DENIED
Mother wanted to relocate to be with her husband in North Carolina. She and her now‐husband lived together in Springfield and had one child together. Her husband joined the military after they married and when she became pregnant with her second child. Father had parenting time nearly every weekend due to his work schedule. Mother did not work after she and her husband had the first child. Father has exhibited odd behaviors in the past, but is able to hold down a job and function well. A neighbor testified that Father was a good father. The minor child had a good relationship with Father. The move would significantly impact his ability to see the minor child. All of the child’s family members live in Missouri and the child is well‐adjusted to her home. Distance North Carolina (15 hour drive)
Age of child 8
Reasons Husband in military
Factors 3, 4, 5
B v. B Vernon County (2011)
RELOCATION DENIED
Both parents’ homes were designated residential–and the parents had shared custody (50‐50 time). Mom and Dad grew up in Nevada and lived there. Dad had gone to law school in Texas – and was licensed to practice there. He practiced briefly–then went into the Army. Dad is now a salesman for medical devices and worries that his job may be eliminated because he has not met his quota. Dad has remarried to a woman originally from Nevada–but who lives in Ft. Worth–where he now wants to move. Father would begin practicing law again and also coach wrestling at the school where his new wife works. Minor child has interest in wrestling and Father believes he could compete in Olympics. Dad proposes to fly child back and forth at least once a month. Distance Nevada to Ft. Worth, Texas (7.25 hour drive)
Age of child
Reasons
Factors 2, 3, 5
C v. S (2011) Sullivan County
RELOCATION DENIED
Mom and Dad shared parenting time with child. Mom lost her job and wanted to relocate to Jefferson City area (where her new husband happened to reside). She had actually looked for a job in Sullivan County–but it is a rural area. Move would make equal parenting time impossible–there would be a substantial decrease in the amount of time Dad could have if Mom moves. Dad was highly involved in school activities and coached the child’s ball team. All of Dad’s family lives nearby in Sullivan County–while only Mom’s new husband’s close family members live in Jefferson City area. Mom’s close family members also live near Sullivan County. Child has always attended school in Sullivan County–and although there might be more extracurricular activities available in Jefferson City–there are activities available in Sullivan county in which the child has participated. Distance Sullivan County to Jefferson City (2.5 hour drive)
Age of child
Reasons Job
25
Factors 2, 3, 5
KC v. TS, (2011) Sullivan County
RELOCATION DENIED
Mother worked at a hospital, where her income was decreased. She looked for a job locally, but ultimately found one in a facility that was close to where her new husband resided. Father and Mother had equal time with the child. Father was a coach on the child’s ball teams. The distance between the homes if the relocation were allowed would substantially decrease Father’s time with the child. Both Mother and Father’s family live in the Sullivan County area. All of the extended family often see the child and the move would limit their contact as well. While the child had some behavioral problems at his current school, they only occurred on one occasion. He had friends at school and was well‐adjusted. Distance 150 miles Sullivan Co. to Jeff. City
Age of child 8
Reasons Mother’s Employment and new husband
Factors 2, 3, 5, 8
S v. H (2010) RELOCATION DENIED since Mom had already changed her address–modified the Judgment and
St. Louis County – Ballwin
gave Dad residential parent status.
Child had been adopted–had ADHD, which was treated by the physicians in the St. Louis area. Child had IEP– adjusted well in school, had many friends and participated in sports. Child’s 16 year old sister lives in St. Louis County. Mom renewed a relationship with prior high school boyfriend–who lived in Florida. Mom was now pregnant with his child–they “suddenly” married in May/2010. Mom had been going to Florida once a month for a visit. Mother had made plans to permanently move to Florida. Mom works as a mediator with CitiMortgage–no guarantee that she will have a job in Florida. Mom’s new husband does not have children and does not have experience with children. Dad is disciplinarian and has received extensive training on how to raise children in the foster care system. Mother had to have Father’s help in disciplining the child at times. Distance St. Louis to Florida (15 hours)
Age of child
Reasons
Factors Unclear 2, 3 probably
Greene County
BLP v. DKP, (2008)
RELOCATION DENIED
Father and Mother agreed to a split‐custody arrangement in January of 2008. In April of 2008, Father notified Mother than he intended to move to Arkansas to pursue a Master’s degree in Emergency Management. He had not yet, however, completed a bachelor’s degree. Father had an Associate’s Degree through Cox Hospital and worked as a nurse. Father attended monthly weekend military duty in Arkansas. His proposed move would be closer to his military duty. Father proposed that the parents do exchanges in Harrison. Due to the split custody, the parents would travel every weekend for the exchanges. Distance London, Arkansas (3.25 hour drive)
Age of children 8 & 12
Reasons Education
26
Factors 3, 5
B v. J (2008)
Cole County
RELOCATION DENIED Mom remarried and her new husband took a job in St. Louis. Mom wants to go to accelerated nursing school program – which would leave child in daycare or with her husband. Parents had close to a 50‐50 split. Relocation will significantly affect child’s interaction with Dad and all family members and the child has resided in Cole County his entire life. Distance Cole County to St. Louis (2.25 hour drive)
Age of child
Reasons Remarriage, school
Factors 3, 5
BW v. JAS, (2008) Cole County
RELOCATION DENIED
Mother asked for permission to move from Jefferson City to St. Louis, where her new husband had taken a job. Father and Mother had pretty much equal parenting time. The new proposed schedule would reduce Father’s time to every other weekend. Mother was attending an accelerated nursing program which would mean the stepfather would be a shared caretaker for the minor child or that the child would spend considerable time in a child care facility. All of the maternal and paternal grandparents live in the Jefferson City area. Distance 100 miles Jeff. City to St. Louis
Age of child young
Reasons New Husband & His Job/ Education
Factors 2, 3, 5
SLC v. CAC, (2008) Greene County
RELOCATION DENIED
Mother’s move was motivated by her desire to seek a doctorate degree. There were no firm class schedules at the University of Arkansas, but Mother would attend possibly one evening class. Father had been an involved parent, who sought a job with flexible hours so that he was able to participate in the child’s life. The relocation would significantly impact his parenting time with the child. Father attends child’s special activities and takes her to doctor and dentist appointments. The most significant factors that the Court considered in reaching its decision are factors two and four. Distance Farmington, Arkansas (2.25 hour drive)
Age of child young
Reasons Education
27
Factors 2, 4, 5
B v. W, (2007)
RELOCATION DENIED
Greene County
Mother had moved multiple times after the initial divorce decree in 1998 and relocated to Missouri to be closer to her parents. Father moved from Texas to Missouri in order to reside closer to the children. Since moving to Missouri, he had been able to participate in the children’s activities. Prior to the litigation, Father and Mother had a week on and week off schedule. Mother wanted to move to Phoenix for a higher paying job. Phoenix has a higher cost of living than Springfield, Missouri. Mother had actually already moved to Phoenix with her fiancé and had signed a lease on a home costing $2,000.00 per month. Mother’s fiancé was unemployed. He worked as a professional fisherman. The children had a close relationship with the grandparents in Missouri. The move would substantially affect the children’s time with Father and the grandparents.
Distance Phoenix, Arizona (20 hour drive)
Age of children Pre‐teens
Reasons Job with greater wages/Fiancé
Factors 2, 3, 4, 6
PER v. RAW, (2007) Greene County
RELOCATION DENIED
Mother and her husband wanted to move to Iowa supposedly because of the wishes of the child. Prior to Mother’s marriage with her husband, the child had no problem with Father’s same‐sex relationship. After Mother’s marriage and attendance at the “Open Door” Baptist Church, the child began expressing problems. Mother allowed the child to drop out of school and began home schooling. The child was working at an organic farm in Iowa and had a girlfriend. Not surprisingly, the child wanted to stay in Iowa. Father’s contact would be significantly decreased and very restricted if relocation were permitted. The child does have a close relationship with his Mother and the relationship with his Father has been strained because of the court actions. Family members live in the Springfield area. Mother testified that she might relocate to Indianapolis from Iowa if “things open up.” Distance Muscatine, Iowa (7 hour drive)
Age of child 16
Reasons Church/Family
28
Factors 2, 3, 4, 6, 7
ANALYSIS OF CASES A. MORE DENIED THAN ALLOWED 1. Product of more “denied” cases appealed? 2. Very few cases reversed on appeal. 3. Anecdotal analysis of Greene County cases suggest that slightly more denied. B. GREATER LIKELIHOOD OF BEING DENIED IF CASE IS IN MORE RURAL AREA. 1. More emphasis on the importance of close family members? 2. Less or more likelihood that relocating parent has found better employment?
RELOCATIONS ALLOWED Kansas City
St. Louis
Springfield
Rural
2
6
6
8
RELOCATIONS DENIED
Kansas City
St. Louis
Springfield
Rural
5
3
8
17
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FACTOR ANALYIS OR WHAT FACTS SHOULD YOU FOCUS ON?
A. FACTOR TWO: THE ABILITY AND WILLINGNESS OF THE PARENTS TO ACTIVELY PERFORM THEIR FUNCTIONS AS MOTHER AND FATHER. 1. This factor is where I typically consider the history of the parties. a. b. c. d.
Has one parent had a history of instability? Has a parent moved frequently? Despite this history, have they always performed their parental roles? Have each parent responded when asked to take the child to a doctor’s appointment? e. Does each parent participate in parent-teacher conferences? f. Does each parent ensure that the child’s homework is completed? 2. Has a remarriage affected the parent’s participation in parental functions? a. Has the new wife/husband/significant other affected the parent’s relationship with the child? b. Has that parent now given more attention to step-children rather than the biological child? 3. Has either parent involved the child in adult-matters? a. Does the child witness arguments between the parents? b. Does the child know the nature of the arguments? c. Has one parent involved the child more than the other? 4. The non-relocating parent’s role, which is important in relocation cases. a. b. c. d. e. f.
Just how active is the non-residential parent? Do they have special involvement at the child’s school? Do they coach the child’s baseball team? Does the non-residential parent rely on the grandparents too much? Is the non-relocating parent just a “good-time” parent? Does the non-relocating parent ensure that the child has clean clothes and prepared for school?
5. Do the parents have a good relationship? a. Has the relocating parent been supportive of the other parent’s role? b. Has one parent shown immaturity or the inability to move beyond the past?
30
B. FACTOR THREE: THE INTERACTION AND INTERRELATIONSHIP OF THE CHILD WITH PARENTS, SIBLINGS, AND ANY OTHER PERSON WHO MAY SIGNIFICANTLY AFFECT THE CHILD’S BEST INTEREST. 1. HALF-SIBLINGS. a. b. c. d.
Has either parent had children with someone else? Is this an older or younger step-sibling? Recent addition or not? What’s the nature of the relationship between the child and the halfsibling? Good? Or not so good? e. Are the half-siblings in the relocating parent’s home or are they with the non-relocating parent? 2. GRANDPARENTS. a. Has the child continually gone to a grandparent’s home rather than daycare? b. Are the grandparents a good influence on the child? c. Are the grandparents supportive of the other parent? 3. STEP-PARENTS/SIGNIFICANT OTHERS. a. b. c. d. e. f.
Is this a long term significant other or step-parent? One in a long line? Are they a good influence? DWIs? Old DWIs or new? Their history of stability? Good influence or not?
4. ANY OTHER PERSON WHO MAY SIGNIFICANTLY AFFECT CHILD. a. Counselor who has a long relationship with child?
C. FACTOR FOUR: WHICH PARENT IS MORE LIKELY TO ALLOW THE CHILD FREQUENT, CONTINUING AND MEANINGFUL CONTACT WITH THE OTHER PARENT. 1. Has the relocating parent been inflexible on arranging parenting time? 2. Is their evidence that they have been difficult or impossible to deal with when times for exchanges have to be changed or altered? 3. Does the relocating parent communicate well with the non-relocating parent? 4. Does the relocating parent always tell the non-relocating parent about extracurricular activities or school functions? 5. A history of denying parenting time does not bode well when considering how that relocating parent will be able to assist in ensuring frequent contact to the non-relocating parent. 31
D. FACTOR FIVE: THE CHILD’S ADJUSTMENT TO THE CHILD’S HOME, SCHOOL, AND COMMUNITY. 1. Is the child doing well in school? 2. If they are not doing well, would a move be beneficial? 3. If they are doing well, are they the kind of child who would adapt easily to a new school? 4. Do they have many friends? 5. Are the friends a good influence? Or not so good? 6. Are they the kind of child who could easily make new friends? 7. Or are they the kind of child who is an introvert who has difficulty? 8. Do they have special interests in the community? 9. Do they regularly take part in an activity that competes and which could not easily be duplicated if a move was allowed? 10. Or do they regularly take part in an activity and the relocation would allow them greater exposure? E. FACTOR EIGHT: THE WISHES OF A CHILD AS TO THE CHILD’S CUSTODIAN. 1. 2. 3. 4.
Hugely important the older the child gets as long as the child is doing well. If the child is not doing well, then not so much. What are the child’s reasons? Good? Or not so good? Does the non-relocating parent have a stable home or is there no viable alternative if the relocating parent moves in spite of the child not being able to move?
THE INTERDEPENDENCE OF THE FACTORS A. Maybe the most important question: What has been the role of the non-relocating parent in the life of the child?
B. Second question: But is there anything that could outweigh that role?
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MISCELLANEOUS CONSIDERATIONS
A. Section 452.377.10 requires that a new parenting schedule be entered if relocation is allowed, in addition to delegating transportation costs, which may be accomplished by adjusting child support. B. Attorney fees may not be assessed against a party who objects to a relocation in good faith. Section 452.377.13 RSMo. C. A trial court need not specifically set out the eight factors when making its determination in a relocation case. Mantonya v. Mantonya, 311 S.W.3d 392 (Mo. App. W.D. (2010); and Vaughn v. Bowman, 209 S.W.3d 509 (Mo. App. E.D. 2006); analysis test D. A trial court has discretion in its decision and may only be overturned on appeal if there is no substantial evidence to support the outcome. Murphy v. Carron, 536 S.W.2d 30 (Mo. 1976).
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