Best Protection in a Custody Battle

a friend of mine is recently separated (April), heading to divorce. her ex is in a serious relationship, engaged and planning a wedding later this year. They have three kids. An almost 17 yr old, an 9 yr old and a 5 yr old. It is my gut feeling that in 17 mths, when oldest is done with high school, that he is going to try to take the kids and move them to the west coast. This is nothing more than a gut feeling right now coupled with a vague comment the 9 yr old made to me. The kids spend probably about 60% of their time with their grandprarents and aunt/ uncle and around 20% with each parent although they officially life with their mother, my "friend". Right now, she lives in the house ( owned jointly by her parents and the ex) and the ex lives in a room in a friends house ( although I am sure that will change this year with the engagement). As of now, the kids have no relationship with the new girlfriend, although I am sure that too will change this year and they will meet her and spend time with her.

Other than engaging an attorney (which I will try to convince her to do), what are some things she can be doing right now to make her case for custody stronger? Is it a good or a bad thing that they are with the grandparents so much? I have read that out of state moves often consider the relationships with local relatives in addition to parents. She has recently started working so that's good but she is working so much that she's never home. So not sure how to advise her on that. She's trying to establish herself in this new career so it's tough. The ex works a day and a night job so hes busy at work too. My friend also continues to go out every Fri & Sat night with people 1/2 her age which I try hard to convince her isn't cool for a whole variety of reasons but without much success

Anyone else go through something similar and have advice on things she should be doing now to have a stronger case? She'll be the single parent and he'll be married (and is talking about having a child) so we are very worried he'll have a stronger case.

I'll add that the kids love both of them but that they don't love spending time with either of them. They especially don't like spending time at dad's current house because they are all mostly confined to one room and it makes them uncomfortable ( especially the 9 yr old). 

Also, any advice for "prepping" these kids for the new reality of dad's girlfriend/ future wife and future siblings? My friend refuses to acknowledge it and the ex thinks that this is going to make the kids really happy. He has no sense that they are going to be freaked out. I think they are going to be very confused and probably need some prep or help.

I'll add that even though the parents are in this horrible, devastating situation, neither of them is negative about the other parent to the kids and both encourage them to spend time with the other parent. In fact, my friend fights her ex to spend MORE time with them and constantly reminds him to call them and so on. Maybe not her best strategy right now.

It might sound counterintuitive, but today's judges actually like to hear that, that parents are encouraging relationships with the other parent rather than trying to sabotag the relationship.

I don't have any advice, I think your comment above about seeking legal help is probably the best and smartest thing your friend can do. Explain that getting a lawyer does not mean they are trying to screw over the ex, but rather is to protect their own interests.  

If the parents have joint custody, it would be extremely difficult for the father to suddenly move with the children to California, and the court is highly likely to prevent that.  Any decent divorce lawyer would be able to handle this and prevent it.  However, the best way the mother can strengthen her custody and time sharing issues generally, is to make herself as emotionally and physically available to the children as possible, which sounds that she is not doing currently.  

yeah and they aren't trying to sabotage each other with the kids. They are being decent about that. and that's not what I am asking here to be clear- just seeing what kinds of things she can be doing to improve her own situation if it comes to a custody battle. I have not told her about my "hunch" yet because I think it will break her. The lawyer conversation has been more around $/ child support which is one area they have been battling over a bit but it seems to have stabilized. 

Unless the law has changed, in New Jersey no parent is allowed to move a child more than 50 miles away from the other parent without that parents consent.  So if your friends ex wants to move to California he will have to go without the kids unless your friend agrees to let him take them.  My info is old so you may want to check.    Just as important,  you may want to look into how to enforce a child support order so you can be prepared if he moves to California and leaves the kids behind

agreed, jasmo she is not doing that currently  Neither of them really are. There is no formal agreement right now and I should have put "divorce" in quotes because they were never legally married. They have been together ( living and raising kids) for 20 years

I'd also consider the possibility that the new wife may not be as enthusiastic about taking on 3 kids.

I find it hard to believe that a parent can't move more than 50 miles under any circumstances.  What if they need to move for their job....say the job shuts down and moves out of state...and they have to move with the job as they will likely end up with less than half the income at a new job?

jmitw said:

I find it hard to believe that a parent can't move more than 50 miles under any circumstances.  What if they need to move for their job....say the job shuts down and moves out of state...and they have to move with the job as they will likely end up with less than half the income at a new job?

The parent can move, but they can not take the children more than 50 miles from the other parent  without the other parent's consent.  My info is several years old, but  after I was separated and toyed with the idea of moving to Connecticut, 60 miles away I could not have moved there with my daughter without her father's consent.   The law may have changed but yes, people had to give up jobs  and make huge sacrifices. 

Perhaps they could go together to consult with a mediator to discuss their custody issues and concerns.

Maybe document how involved the NJ relatives are in the children's support and welfare?  You'd have to ask a lawyer if a grandparent has any standing.  But even if not, such documentation might be helpful if, say, an expert is brought in to conduct an evaluation about the best setting for the kids.  The expert probably would interview the grands, and the grands will have their facts ready if they document "as they go."

Does not sound like they have the money for a custody dispute or a big acrimonious divorce. Mediation is key here.  Just because he has a new relationship they can work together to do whats best for the kids.  

mlj said:

Perhaps they could go together to consult with a mediator to discuss their custody issues and concerns.

I don't think that can happen right now. Currently, they have a decent arrangement worked out and it is as civil as it can be. She'll heal in time and maybe the mediator can happen. Again, I am thinking over a year ahead and it's based on gut not anything that's happening right now.

jmitw said:

I find it hard to believe that a parent can't move more than 50 miles under any circumstances.  What if they need to move for their job....say the job shuts down and moves out of state...and they have to move with the job as they will likely end up with less than half the income at a new job?

Relocation law in NJ is actually more complex than a 50 mile rule, which might have been applied in some situations.  There is a case called Baures v. Lewis, 167 N.J. 91 (2001) that is central, (can be googled) and this article helps to explain it. 

http://www.familylaw-nj.com/Articles/Relocation%20Article%2012%2002.pdf

I'm no expert in any way on this, but the bottom line generally is that if both parents have joint custody and are more or less equally involved in raising the children, it would be very difficult to get a judge to approve distant relocation.  However, if one parent has sole custody, or even the vast majority of time with the children, and needs to move because of a job, family, and the children are on board, the court may order it, if it believes that it's in the best interests of the child.  There would be a complicated hearing, and probably custody evaluation, to sort everything out.

so, from this, I would think advising her to NOT encourage/ insist he spend additional time with them beyond what he already does if he or the kids aren't even asking for it might be one thing she can do

conandrob240 said:

so, from this, I would think advising her to NOT encourage/ insist he spend additional time with them beyond what he already does if he or the kids aren't even asking for it might be one thing she can do

Yes, all of that might come out in a custody/relocation evaluation, if it can be shown that she is regularly pushing the kids off on him, and they are feeling rejected and more bonded and supported with him.  That could increase the risk of a relocation decision in favor of the husband, if it is serious and deep enough.

breal said:

Maybe document how involved the NJ relatives are in the children's support and welfare?  You'd have to ask a lawyer if a grandparent has any standing.  But even if not, such documentation might be helpful if, say, an expert is brought in to conduct an evaluation about the best setting for the kids.  The expert probably would interview the grands, and the grands will have their facts ready if they document "as they go."

Yes, good idea. I am going to tell the grandparents to start documenting all the time they spend together.

change the thread category to help from soapbox

The very first thing your friend needs to do is get a lawyer and find out what the logistics are for separation and custody in a common-law marriage. Their having patched together an "agreement" with one another that seems civil at the moment is a recipe for disaster down the road. Every single thing is going to need to be legally nailed down, either through mediation or in court (if in fact either of those is an option in a common-law situation).

what kind of "disaster" could happen? Specifically. I ask because I think the "disaster" will happen when lawyers get involved. She has the most to lose once they go that route. He is already giving her more $ than law would require and she currently has primary custody. If they push to,resolve legally, she'll get less $ and he'll wind up with the kids more (if not primarily). She's had a rough 2 years which also won't reflect well on her. The further she can get from that and establish herself in a job and as a more fit parent, the better. So, while I encourage legal advice for her, I don't suggest she push for anything legally right now.

sorry but the first thing your friend should do is stop pushing the kids to her ex and dedicate some time to them. if her job keeps her too busy, then perhaps she should stop going out on fridays/saturdays and focus on her family or else she will lose them

A lot of things can change in a year.

seaweed said:

sorry but the first thing your friend should do is stop pushing the kids to her ex and dedicate some time to them. if her job keeps her too busy, then perhaps she should stop going out on fridays/saturdays and focus on her family or else she will lose them

Yep, for absolute for sure.

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If they move, they will be moving away from their biggest emotional support- their grandparents with whom they spend most of their time.  So, no, a distant move is not in their best interest.  The schools they go to are also tops in the country- the ones they'd go to if they moved are not very good at all so there's that too. Would they be better off living with their father and his new wife?  Not sure yet.  No one really knows the new girlfriend yet.  If she is stable and loving and they take it slow in terms of introducing the kids and getting them comfortable, then it may be quite possible they are better off with them (but locally).  But right now, neither parent has much of an interest in them.  No abuse or anything vile, just lots of self-involvement and "finding themselves" going on with both of the parents.

I've gone through separation and child custody issues. And, I also have several friends who in similar challenges with custody and child support.  So I feel like I can comment from experience:

- Unless there are extenuating circumstances (like abuse or loss of custody), it is rare that a judge will allow a child to be separated beyond a reasonable commuting distance from one parent without the consent of the other - even in cases where new employment or personal obligations are involved. 

- Even in the most civil of separations, it is advised to have a detailed, legal custody agreement. It may be convenient now to handle things as they come, but having details like weekends and summer schedules, holidays, even sick/snow days codified in an agreement will make things much easier for the parents and children down the road. In your friend's case, she may also want to include the grandparents' time in the schedule 

- Ditto for child support. This can be the most acrimonious part of separation and an issue that will invariably come up as the kids age. This agreement should not only include general child support, but also summer camp, extracurriculars, clothing/sports gear, travel expenses, health insurance, tuition, etc 

If legal costs are an issue, it may make sense for your friend and her ex to secure a court-ordered mediator to help them draw up a custody and support agreement. If there are joint assets that need to be separated, she would be advised to just hire a lawyer.

I think the question needs to be asked about which parent is more able to provide a stable life for the child?   If there are issues about either of them (drugs, alcohol, mental illness etc) that will play into this.  If you are dealing with a parent's right to custody of their child verses grandparents, it's a whole different thing, and the grandparents, unfortunately, are not on par with the parents.

no one is suggesting or taking any steps for the grandparents to have custody. The question was around one spouses right to move the children 3000 miles away. The relationship with the grandparents is one factor in why that arrangement would be devastating to the kids. As long as the kids remain in range of both parents & their larger support system, I think a valid case could be made for living with either parent.

I understand the question was around one spouse's right to move 3000 miles away.    My point is that if there are issues of one parent's suitability over another, that comes into play into whether such a move would be allowed.   That's all.