[lismith]

My husband and his ex-wife have joint legal custody as outlined in their divorce decree. They have 2 girls age 6 and 10. She is moving to Fort Worth to re-marry. We have recorded conversatons expressing our wishes not to have this happen as instructed by our attorney. According to state law, she cannot leave the state without his consent. She is going anyway and thinks it is rather funny. The girls do not wish to leave nor do they like their new step-father to be.
According to our attirney, there has been a recent ruling from the state supreme court that if you can prove that the move was done out of spite and done in secret, that warrants a material change in circumstane, i.e. change in custody. I have been researching this ruling but have yet to get a clear cut answer. Can anyone shed some light on this for me? I am fighting for 2 little innocent little girls whom I love very much. I cannot accept the possibility of failing them.

[stinawords]

There is a huge difference between legal and physical custody. You said that your husband and his ex had joint legal custody which even with the new law wouldn't stop her from leaving. If he has visitation rights or some physical custody that would make it illegal for her to move with out his concent. So please let me know if he has some sort of visitation or physical custody and I can go on further as will others.

[cdad]

You have recorded conversations ? Better be careful with those as unless both ( all ) parties are aware its being recorded then they aren't good for much.

[Gem_22205]

Should a parent need to relocate, the court will continue to use the “best interests” standard in determining where the child will go. There are federal laws that prohibit a parent from simply taking a child and moving without consent of the court or the other parent.


Out-of-State Moves with the Child
The right of a parent to move out of state with the child is another area of law on which states are divided. In times past, most states automatically would allow the custodial parent to move wherever he or she wanted with the child.

>In recent years, some states have placed restrictions on the right of the custodial parent to move with the child. These states have a strong policy in favor of preserving continuity in the relationship between the child and noncustodial parent, and courts in these states are reluctant to allow the custodial parent to move with the child over the objection of the noncustodial parent unless there is a very good reason for the move.

>In these states, the law may say a child cannot be moved without permission of the other parent or permission of the court. A parent who seeks to move with the child may be required to give notice (such as sixty days) before a proposed moving date.

>The law in this area is shifting. Several state legislatures are considering new standards for determining when a parent can move out of state with the child. Regardless of the law in a particular state, there are several factors that courts consider when deciding whether to allow a move with the child:

>Custodial parent's reason for the move. If the parent who seeks to move with the child has a good faith reason for the move, that is a positive factor in favor of the move. Good faith reasons include: obtaining a better job, joining a new spouse, and moving to be near extended family. If a job change is the basis for the move, the plan for a new job should be specific, not just a general hope of finding new employment. The main bad faith reason for moving is to deprive the noncustodial parent of contact with the child. If the court believes the main reason for the move is to diminish contact between the child and the noncustodial parent, the court is not likely to allow the move.

>Noncustodial parent's reason for opposing the move. If the noncustodial parent has a good reason for opposing the move, that is a factor in favor of denying permission for the move. The main good reason for opposing relocation is the child's close relationship with the noncustodial parent and the disruption of frequent contact between the child and noncustodial parent that would result from the move. If the noncustodial parent is not close to the child or has not regularly exercised visitation, the court is more likely to allow the move.

>Advantages to the child from the move. If it can be shown the child will benefit from the move, that, of course, is a factor in favor of the move. If, for example, the child will go to a better school or be in a climate that is better for the child's health, those factors will support the request for move. The parent asserting that the child will benefit from relocation should be ready with specific evidence, such as witnesses knowledgeable about the difference in school systems or medical testimony regarding the child's health.
The degree to which visitation can be restructured to preserve the relationship between the child and the noncustodial parent. If the court believes that reasonable restructuring of visitation can preserve and promote a good relationship between the child and the noncustodial parent, that is a factor in favor of allowing the move. Restructuring of visitation usually involves scheduling more visitation in the summer and over other holiday breaks. In some cases, the noncustodial parent and child may actually spend more time together each year under the restructured schedule than under the original schedule, although the restructured schedule will have less frequent periods of visitation. If the court believes that frequency of contact is more important than large blocks of time, then the move is less likely. If the parents cannot afford visits over a long distance, the court also is less likely to allow relocation. If visitation is affordable, the court might reduce child support to facilitate visits, or the court might assess the cost of travel on the parent who seeks to move.

>If the parents have joint physical custody with the child spending a substantial amount of time with both parents, a court may treat the request to move like an original custody determination. The court will try to decide which parent will best meet the child's needs. The court will consider the above factors, along with other factors usually considered in custody cases, including the child's attachment to the current home, school, and community.

I have included the link for this information provided from Mississippi Family Law FAQs:
Free Mississippi Family Law FAQs | Free Mississippi Family Law Legal Documents

Hope this helps you.

[Fr_Chuck]

You have an attorney, use them, I would suspect going to court will be in the future to present your evidence, and are you planning to ask for physical custody ?

[lismith]

They both have joint legal custody, she has primary physical custody and he has standard visitation. We get them every other weekend and 4 weeks in the summer. Every other holiday and so on and so forth. When she moves, unless visitation is altered (which in no way could allow us to be MORE a part of their life) then we will be 6 hours from them. We will still have 4 days a month with them, but 24 hours of that time will be spent in a vehicle just getting them back and forth. I'm told that Mississippi statute states that because of the joint custody arrangement that she must have his consent or petition the courts for permission to leave. If she leaves without following the guidelines, it merits a material change in circumstance that could result in a change of custody. We also have other cases pending against her including live in boyfriend, default on mortgage payments, several contempt issues. Bottom line is, they have a life and a home, a church, and friends here. They would not suffer as traumatic an adjustment if they came here to live as they would moving to another state, another school, a completely different lifestyle with a stepfather that has been mean to them. Not to mention, I am a stay at home mom which makes me readily available for them at any time they may need me, whereas their mother and stepfather both work full-time jobs and aren't exactly financially stable. Surely the courts will consider this.

[ScottGem]

The bottomline here is that there is a court ordered visitation schedule. The custodial parent cannot move without the court's permission or a modification of that schedule.

What you need to do is IMMEDIATELY file a motion in Family Court to order the mother to not move until the court has made a decision and to change physical custody.

The statute you refer to fairly standard. But you don't want to wait until she moves. You want to head it off before then. The fact that she hasn't filed herself will show contempt of court and hopefully count against her.

With all the other issues and the children expressing their prefernces, I think you have a good chance of gaining physical custody.

Its possible

[lismith]

This is where I have the problem. Our attorney has advised us to wait until after she moves, because then she is most definitely in contempt. The only conflict here is that this boyfriend she is moving out there to marry, his ex-wife and my husband and I share the same attorney. We have joined forces so to speak. They are currently pursuing a contempt case for these 2 living together. I'm afraid he is hoping to wait until she moves to catch them in the actual act f living together for her case, but by doing so, although his intentions are good, he is somewhat hampering our ability to protect the girls. There is also a little boy involved on the other end of this. The boyfriend and his ex-wife go to court in September and she has been building her case against him for custody for 3 years. If the courts award her custody of her son and remove him from this guy's home, and then our court date rolls around, what are the odds that with all that we have, we will be granted custody based on the fact that they have already removed one child from the home?

[ScottGem]

I think you need a new attorney. This one has a conflict of interest. I can't believe he is advocating letting her move to "catch her in the act". First, because of the affect even a temporary move will have on the kids and second because it will be harder to get the kids back then to prevent the move in the first place.

Yes, having another child removed from the household will help your case. But, I think your goal should be preventing the move in the first place. Do you have proof of her intent to move? If so, there is no need to "catch her int he act"! All you need to do is show this proof and point out the fact that no move has been made to get the court's approval, even after being advised that its necessary. Since you have other issues showing contempt of court and other violations of the divorce agreement, there should be no need to wait for another violation.

[lismith]

Thanks. All of your answers have been helpful. I am at a crossroads here and have consulted several attorney friends and my father who works in law enforcement and I keep getting the same thing. That there is nothing we can do. I would like to know where I can read the laws and statutes where all this is spelled out if anyone knows how to access that info. The girls just called and said that their mom and her boyfriend told them that they have to move to Texas. They are very unhappy. We pick them up on Friday and have them for 2 weeks and are planning on going on vacation for 2 weeks which we do with them every year. I am terrified that when we return them to their mother, they will not ever be going home again. And the closest thing they have to home is now our house.
Thanks a lot for all you guy's help.

[cdad]

OK.. first off I would listen to what Scott is saying. If you have proof of her requesting a move then you have enough to go to court before it happens. You have to remember that with most " law" type lawyers you can't do anything until after the fact. This is one case where the fact is presenting itself and now is the time to act on it. And I wholely agree on the getting a new lawyer. If you haven't signed papers already about conflict of interest I would be surprised because in most states a lawyer is only allowed to represent 1 side and 1 side only.

[ScottGem]

in most states a lawyer is only allowed to represent 1 side and 1 side only.

Just a comment on that, I think the attorney is representing both sides, but rather 2 different sides against another. The way I read it he was respenting the OP against the her husband's ex wife and the ex's boyfriend's ex wife against the boyfriend. So, while that may be allowed, I still think it's a conflict of interest.

I don't understand why people are telling you there is nothing you can do. You won't know until you try. Sure its possible the judge won't hear the case, but I don't believe that to be true. But you really need to act NOW!

As far as seeing the actual statutes, I doubt if they will help you, but GEM gave you a link to them.

[lismith]

Yeah I researched the links also. They are saying the same thing. And yes you read it correctly about our attorney. He and the boyfriends ex wife have been building a custody case for 3 years. I don't think he has a chance in hell of winning either, so that could only further help our case. We kind of joined forces because she had evidence we needed and vice versa. We are both just trying to get our kids back.
But as you advised, I emailed my attorney that my husband and I want to file a motion requesting the courts to keep her from moving away with the kids and to request a change in custody. I am going to call him in the morning and tell him that we have a conflict of interest here between the 2 cases. If he is unwilling to file our motion, we will find someone who will. I agree that if we don't stop her now, then we will have a harder time getting them back if she does go.
Another question for anyone who might know. While they were still married, she forged my husbands name and drained a $30,000 IRA without his knowledge. When he found out about it, he forgave her and attempted to work things out. In the following months, she began a relationship with the now boyfriend and subsequently kicked my husband out. When she filed for divorce, he wanted to file on the grounds of adultery and wanted to get her for the money she took too. His attorney told him in no uncertain terms that he could never win against a woman in the state of Mississippi and he ended up losing the house, the car, the kids, his money, his pride, and so on and so forth. She last forged his name in 2004. Can he press criminal charges against her for the fraud she committed and if not, is there anything we can do to this attorney for providing poor representation? I know it is a shot in the dark but I am literally grasping at straws now. By all rights, this woman should be in prison... not moving off to Texas to live with her boyfriend and taking the kids with her along with every extra dime we've got.
There was a huge injustice done somewhere and I just cannot accept that she can just waltz right through it. This woman gets away with murder. Had anyone else done the things she has done, they would be serving time, no doubt.

[ScottGem]

I would suspect the Statute of Limitations has past on the fraud charge. Even if it hasn't, I don't think a prosecutor would proceed against her because he forgave her at one point.

But it certainly is something you can bring up at a custody hearing to show her unfitness.

[lismith]

I was afraid of that. Thanks for all your help!!