Divorce Law Journal

Relocation In Michigan And Edmund Fitzgerald Update (updated)

Just as the Kentucky Supreme Court has three relocation related cases pending, Michigan has been struggling with the issue. Here is Jeanne Hannah's post Mom's relocation of 91 miles causes change in custody in Updates In Michicgan Family Law.
Nearly a year ago I wrote about a missed opportunity to meet Jeanne at this post. Marcia Oddi dubbed it the adventure of the Edmund Fitzgerald and I promptly forwarded the haunting score to my hosts, who were not very amused. But, ha! They invited me back and we're planning to cruise up Jeanne's way again this summer. The one lesson I learned, though, is that you really can't plan when traveling by water. So, Jeanne, if I'm nearby I'll give you a call, but no advance dinner plans. :)
UPDATE: Marcia Oddi writes, Actually it is "The Wreck of the Edmund Fitzgerald."
See this excellent video, accompanied by the Gordon Lightfoot vocal.
http://www.youtube.com/watch?v=ZEwEfti7gRk. Thanks!

Relocation Act, Ky (Post Updated)

HB383 was filed today with posting waived. It should be online tomorrow and we'll link to it when available. It will be heard in the house judiciary committee in Frankfort on Wednesday, January 30, 2008. It mirrors with few exceptions the AAML Model Relocation Act, available here.
Update: HB383 is online here.
UPDATE: Still in house judiciary committee 3/24/08

Oral Arguments And Briefs In Two KY Relocation Cases

Kentucky Court Report has collated and posted the following which includes links to briefs in which oral arguments are set December 13, 2007 before the Kentucky Supreme Court in two relocation cases:

9:00 a.m. FRANCES V. FRANCES (2007-SC-76-DGE)
"Child Custody. Issues in this marriage dissolution proceeding relate to the trial court's award of primary physical custody of the child to the father, and the effect of the mother's relocation out-of-state on the determination of the child's best interest."
Discretionary review granted 3/14/2007
Trigg Circuit Court, Judge Bill Cunningham
For Movant: Julia T. Crenshaw
For Respondent: Sands Morris Chewning
(Note: Justice Cunningham is recused)

Briefs:
Appellant’s Brief
Appellee’s Brief
Appellant’s Reply Brief
COA Decision: 2005CA002235

10:00 a.m. PENNINGTON V. MARCUM, F/K/A MILES (2006-SC-642-DG)
"Child Custody. Issues relate to the denial of a motion to modify a custody agreement based upon the residential custodian's relocation out of state with the child."
Discretionary review granted 1/18/2007
Boyd Circuit Court, Judge Marc I. Rosen
For Movant: Rhonda M. Copley
For Respondent: Martha A. Rosenberg
(Note: Justice Minton is recused)

Briefs:

Appellant's Brief
Appellee's Brief
Appellant’s Reply Brief
COA Decision: 2005CA002349

Here's the link where the oral arguments will be online.

Kentucky Supreme Court Grants Discretionary Review In Another Relocation Case

Last month we reported here on a "not to be published" relocation case in which the Kentucky Supreme Court granted discretionary review. Now there is another. While we still fret about whether to digest "not to be published' decisions, it certainly seems worthwhile to do so for those which are being entertained on discretionary review.
Frances v. Frances, 2005-CA-002235.
Here's the digest:
Issue and Holding:
Whether the trial court’s findings were clearly erroneous or the trial judge abused his discretion in a child custody dispute. The Court held no, the trial judge’s findings were supported by the evidence and he did not abuse his discretion.

Facts:
One child was born during the marriage of the parties. The wife filed for divorce, and the parties entered an agreed order regarding child support obligations and custody schedule. After learning that the wife had removed the child from school and moved to Iowa, with her boyfriend, the husband filed an emergency motion for temporary custody. After a hearing was held, the trial court granted primary physical custody to the husband. The wife filed a motion to amend, alter, or vacate the judgment, which was denied. The wife appealed.

Analysis:
Under CR 52.01, the trial court’s findings of fact cannot be set aside unless clearly erroneous or the trial judge abused his discretion. KRS 403.270 requires that the best interests of the child standard for determining custody. The record demonstrates that the lower court fully considered the best interests of the child. The wife separated the child from everything that was familiar and stable in her life, especially the on-going and consistent relationship with her father. While the wife offered excuses for her abrupt departure, she failed to use any of the readily available resources in Kentucky to protect women from threatening and potentially harmful situations with a disgruntled former spouse. The trial court was in the best position to determine what is best for the child. Accordingly, the Court found no abuse of discretion.
Affirmed.
Digest by Sarah Jost Nielsen, Diana L. Skaggs + Associates, www.LouisvilleDivorce.com

Kentucky Supreme Court Accepts Discretionary Review In Another Relocation Case

It is difficult enough to keep track of the "to be published" decisions. Yet here is the digest of this "not to be published" decision as the Kentucky Supreme Court has accepted discretionary review.
Pennington v. Marcum, 2006 WL 2194903 (Ky. App.)

Issues and Holdings:

1. Whether lower court erred by disregarding the findings of the Domestic Relations Commissioner and by making a decision contrary to the DRC’s recommendations without holding an evidentiary hearing. The Court held no, the court did not err.
2. Whether the lower court erred in failing to consider the best interests of the child standard. The Court held no, the lower court did not err.

Facts:

In January 2001 the parties agreed to share joint custody of their one child, with the mother having physical custody. In 2002 the mother married and moved to West Virginia, but the father continued his weekly visits. In July 2004 the mother moved to Virginia, six hours away from the father’s home. The father then filed a motion to modify custody, seeking physical custody of the child.
The Domestic Relations Commissioner held a full hearing and recommended that the father have physical custody. The mother filed exceptions to the DRC’s recommendations. The circuit court considered the recommendations and heard oral arguments, and then sustained the mother’s exceptions and restored physical custody to her. The father appealed.

Analysis:

First, CR 53.06(2) does not mandate a full evidentiary hearing by the circuit court, it only requires an opportunity for oral argument. Therefore, the court properly reviewed the DRC’s report and considered arguments of counsel.
Second, KRS 403.340 (3) outlines the factors that the court must consider prior to modifying custody. Said statute also refers to the best interests of the child analysis set out in KRS 403.270 (2). The circuit court noted in its order that the child flourished in her new setting in Virginia. The court also noted that it would not deprive the mother of custody just because she moved farther away from the father. The Court found that there was substantial evidence to support a finding in favor of the mother.
Accordingly, the Court affirmed the lower court’s order.

Online Resources In Move Away Cases

Ben Stevens at The South Carolina Family Law Blog, posts a nice online link for a useful resource in move away cases.

One of the (many) issues that the Court considers in such cases is the quality of the schools in each location.

Fortunately, it is now easier than ever to find out necessary information about educational institutions located far away, thanks to Yahoo Real Estate. This free service allows you to research both public and private schools in any state by city name or even by zip code.

The information provided includes contact information, enrollment, student to teacher ratio, and location on an interactive map. There are also reports available on the school's test scores, students, and teachers. This resource can prove extremely helpful as a starting point when a child's education is at issue, and I urge you to check it out.

Still Another KY Move Away Case

Editor's note: This case is now final, and we will update post with SW3d cite when available.
Robinson v. Robinson, __ S.W.3d __ (Ky. App. 2006), 2006 WL 3460123 (Ky. App.)
Issue and Holding:
Whether the trial court had the jurisdiction to modify the custody decree regarding one parent’s wish to relocate with the children. The Court held no, the trial court lacked jurisdiction.

Facts:

The court entered its first custodial ruling in the divorce decree in June 2005. The Court awarded the parties joint custody of the children and designated the mother as the primary custodian. The decree also stated that if either party relocated more than 150 miles from the county that the time

Brockman v. Craig

Brockman v. Craig, 205 S.W.3d 244 (Ky. App. 2006)

Issues and Holdings:

1) Whether a parent, who spends more time with child than the other parent, can claim the status of primary residential parent for purposes of determining the standard to apply to a motion to relocate. The Court held no, the parent cannot claim such status.
2) What standard is to be applied to motions to relocate, if the motion is filed less than two years since the original custody agreement. The Court held that the parent wanting to relocate must show that the present environment endangered the child’s physical and emotional well-being.
The Circuit Court ordered that the motion for modification of custody did not meet the requirements for the court to hold a hearing under KRS 403.340, and denied the motion. Brockman appealed.
COMMENT: The Court of Appeals is almost begging the Kentucky legislature to address relocation. We have promoted consideration of the AAML's model relocation act here.

Relocation

Chief Judge Stephen George gave an excellent presentation on relocation at the AAML/LBA seminar last week," Fenwick, Dead or Alive?" We have made an editorial decision, though, not to report on judges' comments on this blog. The ABA Family Law Advocate features relocation as the subject of its most recent edition and contains a good bibliography. Bill Hoge pointed out that you don't have to be an ABA member to subscribe to the Advocate. Having no respect for Derby, the ABA Family Law Section at their Spring meeting next week in Washington, DC, will have a 2 1/2 hour plenary presentation on relocation on Thursday May 4, 2006 at 9:45 am. The speakers will include Judge Sundt of Rockville, Maryland, Professor Jeff Atkinson of Chicago, Attorneys Mary Jo Curley and Kathryn Murphy, both from Texas, Mary Connell, EdD. of Fort Worth and Jan DeLipsey from Dallas, Texas. It remains a hot issue in family law.