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My son is to marry a girl who has a 3 year old daughter. He is in the military and is stationed in New York. The father of the child has joint custody of the child. Can she legally move out of the state without the fathers consent? The law of the state of Mississippi states that you can not. Is there some law of the military that this can be over ruled?
No!
No, she will not be able to take the child out of state without his permission. Joint custody means the father and mother have joint rights over the child, normally live in the same area and would or could share phsycial custody of the child 50/50. If the father has been exercising those rights, the courts will not allow him to lose his time with his child.
If she tries to move the father could even try ( and most likely get) full custody of the child.
So when he gets ready to move, who will mother choice, let child stay with their father, or let military husband move on without her.
I'm presuming that your intended daughter-in-law and her daughter currently reside in Mississippi where the custody arrangement was finalized. If that's the case and the law is as you say it is, then no, she cannot move without the father's consent. This woman nor the child's father are in the military so military law doesn't apply to them. Marrying your son won't change that. Your son's fiancée can petition the Mississippi court that issued the original custody order for a modification of that order which would permit her to move out of state with her daughter and your son. The judge would have to weigh all the facts and take into account statutory law as well. Generally the best interests of the child would be the central factor governing any such decision.
Absolutely not and if the father has joint custody it means he is involved with his child and wants to be involved with his child. Why take the child from that? Every child deserves to have both biological parents involved in their lives. Your son will need to move to Mississippi after he is discharged. I don't see any reason to uproot the child and take her away from her father and I think that to even consider it is not okay.
As has been stated... no. Even if the father didn't have joint custody and only had visitation, the mother stills has to get his consent to move out of state as this would hinder the father-child relationship.
What if the custodial parent wants to move away from the non-custodial parent?
Where the relocation distance is small, there might not even be a material change in circumstance upon which a parent could move the court to modify an existing custody and visitation order. Since typically a material change of circumstance is required before a court will modify an existing custody or visitation order, a move across town ordinarily is an insufficient basis upon which the existing order would be changed. Although the relocation may make the visitation exchange more difficult, it may remain practical to comply with the existing order, so no change would be made.
Where the relocation distance is great, the case becomes more complex. The primary factor of best interest of the child continues to be considered along with facts such as (1) the existing custody and visitation arrangement, (2) the attachment and support of the non-custodial parent and other relatives, (3) the child's ties to the community, school, church or synagogue, and friends, and (4) the child's desires and wishes. Only a small minority of states require a custodial parent to get the written consent of the non-custodial parent or a court order based upon a finding of the court that it is in the best interest of the child to allow the move. In many states, a custodial parent can relocate if there is a valid reason for the relocation and the move does not result in harm to the child.
The ability of the child to have continuing and frequent contact with both parents, without a detrimental effect due to the relocation, is the primary consideration for a court in modifying an existing order to allow the relocation. The modified order of the court could provide additional time with the non-custodial parent during summer and other school recesses and the obligation of the custodial parent to pay the additional transportation expenses incurred in facilitating the visitation exchange. In California, the impact of a planned long-distance move on a noncustodial parent's relationship with his children may be considered before the children can be moved out of the state. If the moveaway will detrimentally harm the relationship between a child and a parent, together with other factors, it may be sufficient to justify a change in custody to the other parent.
Custodial parents who move away with the child without providing notice to the other parent may not only face a change in custody to the other parent but also criminal charges of kidnapping. Before any move is entertained, the non-custodial parent should be informed of the impending move and an effort made to reach a mutually acceptable parenting plan based upon the proposed location of both parents.
A relocation by the custodial parent requires careful consideration of the non-custodial parent's rights as early in the planning process as possible. Move-away cases can become very difficult to resolve and court involvement can be both costly and time consuming. Thus, leaving in the dead of the night without leaving a forwarding address could have very detrimental effects to the custodial parent.
Relocation cases.. . Present some of the knottiest and most disturbing problems that our courts are called upon to resolve. In these cases, the interests of a custodial parent who wishes to move away are pitted against those of a noncustodial parent who has a powerful desire to maintain frequent and regular contact with the child. Moreover, the court must weigh the paramount interest of the child, which may or may not be in irreconcilable conflict with those of one or both of the parents.
The joint custody cases will be further broken down into joint legal custody and joint physical custody. Where the child is in joint legal custody, the parents share the legal rights and responsibilities of parenthood, but primary physical custody is with one parent. Joint legal custody differs from sole custody in that the child generally spends more time with the noncustodial parent where joint legal custody is involved. Where the child is in joint physical custody, the child actually alternates substantial residential time between the two parents. Some sources refer to this second type of joint custody as "shared" or "alternating custody." As might be expected, the specifics of all types of joint custody arrangements vary considerably from case to case.
The issue of relocation has undeniable constitutional implications. The United States Supreme Court has recognized that the right of an individual to travel freely throughout the country is protected by the Constitution. E.g. Jones v. Helms, 452 U.S. 412 (1981); Shapiro v. Thompson, 394 U.S. 618 (1969). As the Montana Supreme Court recognized in a relocation case, the fundamental right to travel interstate can be restricted only in furtherance of a compelling state interest. In re Marriage of Cole, 224 Mont. 207, 729 P.2d 1276 (1986) (citing Shapiro v. Thompson, supra).
Some courts have side-stepped the constitutional issue by pointing out that a denial of relocation does not affect the parent's right to travel alone. As the Indiana Court of Appeals explained, "The straightforward answer to [the wife's constitutional] argument is that the court's order does not impose any necessary burden whatever upon her right to travel. She remains free to go wherever she may choose. It is the children who must be returned to Indiana." Clark v. Atkins, 489 N.E.2d 90, 100 (Ind. Ct. App. 1986).
Other courts have decided the constitutional issue head-on. These courts note that if a parent who seeks to travel must pay for that right by giving up custody of the children--which is itself a constitutionally protected right, see Santosky v. Kramer, 455 U.S. 745 (1982)--the right to travel has indeed been infringed. The inquiry then becomes whether that infringement is justified by a compelling state interest.
Most courts deciding this issue have held, as did the Montana Supreme Court in In re Marriage of Cole, supra, that "furtherance of the best interests of a child, by assuring the maximum oportunities for the love, guidance and support of both natural parents, may constitute a compelling state interest worthy of reasonable interference with the right to travel interstate." 729 P.2d at 1280-81 (1986). Therefore, in relocation cases courts must engage in a "delicate balancing," on the one side the child's best interests, and on the other side the custodial parent's fundamental right to travel, which is "qualified by the special obligations of custody . . . and the competing interests of the noncustodial parent."
. RELOCATION IN SHARED PHYSICAL CUSTODY CASES
In In re Marriage of Johnson, ___ Ill. App. 3d ___, 660 N.E.2d 1373 The Illinois Appellate Court reversed, however, holding that the indirect benefit to the child of the mother's continuing to live with her new husband did not outweigh the direct benefit of a continued close relationship with the father. The court noted the trial court's finding of the father's "'extraordinary involvement'" in the child's life, and found the 50% reduction in the father's time with the child to be unreasonable.
In In re Marriage of Hoover, 40 Cal. App. 4th 433, 46 Cal. Rptr. 2d 737 the mother had physical custody approximately 60% of the time; the father had custody about 40% of the time. When the mother made plans to move with her new husband to Pennsylvania, where they had accepted employment, the father opposed the move and sought primary physical custody. After finding that the move was economically necessary, that both parties were excellent parents, and that the mother's new husband was an excellent stepfather, the trial court modified custody to give the father primary physical custody with visitation rights to the mother of at least 100 days a year. In affirming, the California Court of Appeal distinguished prior cases involving relocation by a sole or primary physical custodian. The court noted that "here we have shared physical custody and established patterns of care and emotional bonds with both parents."
Thanks to all of your for your input I am looking out for my sons best interest and he will not listen to me, he keeps telling me jag which is some of the military I don't understand can override the paper work and she is free to leave the state with the baby. I think they have a rude awakening coming and I'll just sit back and watch, the father and the paternal grandparents are getting their lawyer involved. So what else can I do. I know in some cases you can be picked up for kidnapping and being in the army is the last thing he needs. I think everyone for your input and all I can do is hope and pray it works out.
JAG stands for the Judge Advocate General which is the legal arm of the military. Military law can sometimes override civilian law, but rarely.
However, I have to slightly disagree with the previous responses. Its not Custody that's the issue, its visitation. Joint Custody simply refers to having a say in raising the child. But visitation is what specifies how much time the parent spends with the child. And if moving will cause a major change in that, then the father and the courts would have to agree with it.
She said "joint custody" she did not say if it's physical or legal. The father could have joint physical custody but at minimum he has joint legal custody and the father would have to agree to a move with joint legal. The issue around joint physical is even greater. If the father is actively involved in the child's life, no court is going to disturb that.Quote:
Originally Posted by ScottGem
JAG wouldn't touch this with a ten foot pole. The mother's not in the military, correct? There is no reason for JAG to get involved with this if none of the parties are in the military and even if they all WERE in the military, JAG is not going to disturb the findings of a civil state court.
The fiancé (OP's son) is headed for a fall.
The father gets this child every weekend, and the other thing here makes no since to me my son deploys in November this girl is getting rid of her home and jumping up and trying to make this move with the child, and maybe I haven't put this in I don't agree to the marriage because of some things that have happened but, I have to accept it. Then when he deploys she is coming back to Mississippi to live with her Mother.
I have talked to my son until I'm blue in the face, I do think she has motives for marrying him and I think she knows she can't leave the state and she is waiting to tell him this. I do not think it's fair to this baby to jerk her around and they have in their head they can fly her back and forth once a month to the father of the child. Huh... the military doesn't pay that kind of money. Someone is not using their heads here and it's them, my son is headed for a fall because he thinks as soon as they marry which will be the 29th of March, he is going to be heart broken. Can't save you kids from heartbreak forever, you live and you learn.
Thanks to all of you.
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