Here are the facts, although I’m not sure which facts are material in a judge’s eyes…
- 2 children, now ages 11(girl) and 4(boy)
- Wife had affair for 4.5 years of the 10-year marriage, which husband found out about in Dec 09; wife is now dating the paramour
- Husband was verbally abusive and clinically depressed throughout marriage and was out of work for several years of marriage with Wife being the wage-earner
- Husband moved out in March 2009 despite wanting to work it out
- Had a separation agreement drafted in mediation, although it was never executed by either party; the “sprit” of the mediated agreement was upheld except that Husband didn’t file for QDRO before divorce was final so assets were not fully split.
- Divorce was final in August 2011
- Husband signed consent order for custody in July 2011 but Wife never knew this and therefore never signed it
- The visitation plan in this un-executed order states that (a) Wife will be custodial parent, with Husband having optional weekday overnight with kids and every-other-weekend; and (b) when Husband has a certain salary and a 3-bedroom residence, they will move to a 50/50 arrangement; and c) if Wife chooses to relocate up to 45 minutes away, that they will go back to plan (a).
- Plan (a) has now been followed for 3 years, and husband now meets the criteria outlined in mediation to move to plan (b).
- Husband didn’t work for 1st year of separation; wife paid $1800 per month to husband for 6 months then stopped at the advice of attorney since alimony had not been ordered
- Husband found work in TN with family for 2nd year after separation and commuted back every-other-weekend to have kids. Husband was then unemployed for 6months and has been employed for last 6 months
- 11-yo daughter is afraid of Father and refuses to spend the night at his place; as a result, she has not stayed with him for the past year and Father has not pressed the issue until recently
- Wife never filed for child support bc Husband was not working and he incurred much debt while not working, and Husband did start paying 3/4 of monthly child support in August 2012 when new job was found
- Mom told Dad in November 2011 that she plans to move from apt in Charlotte to house Concord (35 mins away) in the summer. This would provide better/smaller schools (although current schools are fine), larger/nicer home, yard, neighborhood kids, closer to family.
- In Feb 2012, Dad moved 1 mile from Mom to be closer to the kids (although previous residence was only 20 mins away) and is now in a bad school district.
- Dad is now pushing for visitation schedule (b), which is 50/50 for both children although daughter still does not want to go at all.
- Dad states that Mom is only moving to Concord to be near the paramour and is concerned that the commute and traffic will present logistical issues for him and the children, and will prohibit him from having the 50/50 schedule that he wants and is now ready to have.
- Mom has said she will absorb most of the logistics since she is the one moving
- Who has the burden of proof as to whether the move is good or bad for the children?
- Does Mom have to get permission from a judge to move before doing so?
- If Mom proceeds with the move without permission from the courts or from Dad, does Dad have any recourse? Could Dad press the issue legally and be awarded as the custodial parent?
- If the 50/50 schedule is started now and commences until the move in July, does it make it more difficult for mom to prove that the move is good for the children? Does it give Dad an additional level of recourse if this new precedent is set, although for a brief period of time?