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ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Family Law
Satisfied Customers: 11714
Experience:  Licensed Texas General Practice Attorney
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My ex-husband and I currently have a 50/50 parenting plan -

Resolved Question:

My ex-husband and I currently have a 50/50 parenting plan - I am wanting to move about 60 miles away from our current location. What is the likelyhood that I would lose custody of my 4 year old daughter?
Submitted: 1 year ago.
Category: Family Law
Expert:  ScottyMacEsq replied 1 year ago.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

What is the reason for your move? Are you moving to be closer to family? Is there any family (yours or his) in your current location?

Customer:

Thank you .. I am horribly frantic about this.

Customer:

I will be moving due to a relationship

Customer:

no family of his in current location - I have family but they are not really a part of her life on a regular basis.

ScottyMacEsq :

And there's no family in the new location? You said it's about 60 miles away... is it relatively easy to access (i.e. interstate the entire way) or is it more difficult (lots of local roads, etc...)?

Customer:

VERY easy access. No family in new location, other than the relationships she has built with my significant other.

ScottyMacEsq :

How close do you currently live? And when you say 50/50, you mean that you have actual custody of the child 50% of the time?

Customer:

We currently co-parent in the same household.

Customer:

but the parentling plan

Customer:

is 50/50 - 2 days on, 2 days off

ScottyMacEsq :

Was it going to change at any point? (that is, when she gets older, etc...)?

Customer:

yes

Customer:

when she gets older and her activities change

ScottyMacEsq :

Does the agreement contemplate specifically what that change will be?

ScottyMacEsq :

Or does it leave it open to negotiation by you at a later time?

Customer:

no.

Customer:

negotiations at later time.

ScottyMacEsq :

In terms of schooling, community, etc... how much better (if at all) is the proposed location where you're going to be moving?

Customer:

at minimum equal

Customer:

Noah and I divorced because I am gay.

Customer:

((being 100% up front)

ScottyMacEsq :

Thank you for that. That really does help me understand and better assess your case.

Customer:

I also want to tell you that I have a history of depression and have been in Ridgeview (from depression and trying to not be gay)

Customer:

Noah is an amazing father.

Customer:

But I dont want to lose my child.

ScottyMacEsq :

It's always difficult to say for certain what will happen. A court is going to make this determination "in the best interests of the child". That is a very broad term, and the court is going to consider the totality of the circumstances in this... Since there is broad discretion given to the judge, the judge can consider really anything, so long as the ultimate consideration is the best interests of the child and how the interests of the child can better be advanced.

ScottyMacEsq :

So it depends on how conservative or liberal the judge is, certainly in your case. Your sexual orientation is not an "off limits" category, in that the judge can consider that and the impact that it may have on the child (in the judge's mind).

Customer:

((sick to stomach))

ScottyMacEsq :

So the political orientation of the judge can make an impact there.

Customer:

right.

ScottyMacEsq :

Further, the judge will try to keep with the spirit of the agreement, if at all possible.

Customer:

Deep down, I knew that.

ScottyMacEsq :

But clearly 2 days on, 2 days off would not work at 60 mile distances.

ScottyMacEsq :

It's possible that you could still maintain 50/50 (and change custody every week or every other week)...

Customer:

it can, but that means I have to commute to work here - and hour and half drive in the a.m. ..XXXXXin the pm.

ScottyMacEsq :

But that would change when the child starts going to school (assuming she's not in school already)

Customer:

she is in school.

ScottyMacEsq :

If the child is already going to school and if she has "roots", it's less likely that the court would approve such a move.

Customer:

*sigh.

ScottyMacEsq :

In general, there's no preference as to which parent is preferred, but in practice the mother is up until the child makes roots in the community (i.e. getting started with school, etc...)

ScottyMacEsq :

So a court would almost never take a newborn from the mother, regardless of the absence of a presumption... but as the child gets older, then there really does mean that there's no presumption of which parent is "best".

Customer:

right.

ScottyMacEsq :

And if she has already started her "roots", then you would really need to show how the proposed new location would be "better".

ScottyMacEsq :

Again, the consideration is the "best interests" of the child.

Customer:

right.

Customer:

as it should be.

Customer:

She is what is most important - but I know .. without a doubt ... that I can give her a good home there.

Customer:

but I don't know that it is any better than where we are now.

Customer:

Both are outstanding communities.

ScottyMacEsq :

And so if you could overcome the presumption that uprooting the child from the current domicile and community would be detrimental, in showing that it would actually be better for the child, then you could certainly have a chance.

ScottyMacEsq :

I understand that this is stressing you out, and I wish I could give you really good news, but of course you came here for candor... Even if we didn't consider your sexual orientation, it would still be an uphill battle to get custody in this move.

ScottyMacEsq :

Again, primarily because there is a presumption that where the child has made roots will be the best.

ScottyMacEsq :

If you flipped it, and your ex was moving away, that presumption would be in your favor.

ScottyMacEsq :

It's not based upon the parent, but where the child has made roots. Again, if you can show that the move would benefit the child over the status quo, that would overcome that presumption. But without such evidence, it would be difficult to get the court to agree to give you custody.

ScottyMacEsq :

...and since she's already in school, it would be difficult to have a reformed 50/50 custody agreement, because of the near impossibility of making that work with school schedules.

Customer:

ok.

Customer:

Thank you for your expertise.

Customer:

I appreciate it.

ScottyMacEsq :

My pleasure. I do wish you the best of luck in your decisions and in your life, and that you and your family can still continue to grow together, regardless of the distance involved... If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX good luck to you!

ScottyMacEsq, Lawyer
Category: Family Law
Satisfied Customers: 11714
Experience: Licensed Texas General Practice Attorney
ScottyMacEsq and 3 other Family Law Specialists are ready to help you

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