Q. My wife travels a ton for business and announced in January she was helping her company open a new location in Denver. Last week she told me she is pregnant and leaving me to move to Denver. There is no question the baby is not mine, so she had to come clean. She now tells me that she is taking our kids (ages 8 and 10) with her. She said she talked to them already and they want to move with her and the law says if the kids agree to go she can take them. They told me they will miss me but if they move, they can have a horse.
Can she just up and move with the kids halfway across the country because they agree to go? It doesn’t seem right.
A. It isn’t right and no, she cannot just say that your 8 and 10 year old want to move and just up and move them. You need to hire a divorce lawyer ASAP. You should file for divorce before she has a chance to put them on a plane in an attempted fait accompli. Once they are gone the case gets harder.
She can certainly ask the court for permission to move with the children as part of the divorce process. If she has been traveling significantly for work and you have been home caring for the children, she is not the primary caretaker. If she was the primary parent and had an opportunity to move, she could argue she has what we call a real advantage to moving and should be allowed to take them.
When the request to move happens before a determination of custody has been made, or when there is more of a shared parenting responsibility, the standard is whether the move would be in the children’s best interest. Especially where, as here, she has a choice – she can choose her children and not move. It is much harder to convince a court that the children should move when the standard is best interest as opposed to real advantage.
As far as your children’s consent to go with mom, they are just not old enough to have a say. The law does say if the children consent to go, she can move with them but the children have to be deemed by a court sufficiently old and mature enough to make an informed decision. They are not considering the long-term impact of you not being in their life on a daily basis. They are, as children do, only thinking about the horse mom promised.
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