I have joint legal and physical custody. My order states that I have primary physical custody and my ex has secondary custody of our 10 year old. I need to relocate 2 1/2 hours away for my job. This move will require our visitation schedule to be revised. I think we can come up with a schedule that allows my ex about the same amount of time (40%) but not during the school week like the arrangement we currently have. The move will put our child in a school system that is far superior to current schools and I will have less travel for work and can spend more time at school and he will no longer have to attend an after school program. My ex will not voluntarily agree to the move and visitation change. I was going to file a motion to modify custody and/or visitation but I read on your website that it’s the non relocating parents burden to prove the move would be detrimental to the child. If I file the motion, the burden of proof of change of circumstances would fall on me. Is that correct? What is the first step I need to take? Should I go ahead and file the motion to modify? I have always played by the rules and want to make sure I am doing everything in a legal manner.
You should file your modification first. If you move, once you start violating your order by not sticking to the visitation schedule, you could be held in contempt. In your motion and at your hearing you will need to explain why this move is in the best interest of your child (not your best interest). For instance, focus on the school district being better and the fact that the child won’t be in after school programs any more rather than the benefit the move provides to you.