Blogs

Henning, Keedy & Lee
"Your Family's Law Firm"

MP900412066

Relocating With Children

A very problematic situation has arisen frequently since the economy took a major dive. . . relocating with children for economic (or any other) reason. As we are all aware, Montana’s unemployment rate varied at one point in the 2008-2010 recession from above 9 to above 13% depending on the county/town/city. Many parents were laid off from their jobs, construction came to a standstill so these workers were particularly affected and the domino effect is still being felt. . . So when you get a call from a buddy who says they’re hiring you if you can walk in North Dakota, California, Kuwait, where ever–can you move out of county/state/country with the children for a good job?
Remember that in this state “best interest of the child” is the primary consideration the judge will be concerned with when allowing or not allowing a parent to move. – MCA §40-4-212http://data.opi.mt.gov/bills/mca/40/4/40-4-212.htm
Well, it depends. . .not only on the judge, but also on the facts. Remember that in this state “best interest of the child” is the primary consideration the judge will be concerned with when allowing or not allowing a parent to move. MCA §40-4-212. A judge has to take into account a number of factors when making this decision; in fact, he or she will consider at least 13 different factors, including the wishes of, interactions between and mental, physical and developmental needs/health (including chemical dependency) of the child and the parents, siblings and other family members, the child’s adjustment to home, school and community; the continuity and stability of care; history of abuse by a parent against the other parent or the child; support issues including birth-related costs; whether the child has/will have frequent and continuing contact with both parents and adverse effects on the child resulting from continuous and vexatious parenting plan amendment actions.

Ultimately, of course, the judge has the discretion to allow or not allow a move based on the factors in the best interest test and he or she is rarely going to be overturned by the Montana Supreme Court. The most recent example of this is the case of Marriage of Hood, DA 11-136, which was issued on July 24th: in 2009 Mom wanted to move (to Utah with three children ages 9 to 14) to get a) her GED, b) a job and c) a degree in a field she couldn’t in Montana after years of receiving welfare (Did Dad pay his child support? That was never discussed in the Opinion although they’d been divorced since 2005). In 2009, the Judge allowed her to move initially, but Dad started filing various motions for contempt almost immediately, including a motion to amend the parenting plan in 2010 on the basis she hadn’t fulfilled the reasons for her move (she still didn’t have a job, was on welfare, etc). (Again, although the Justices did not admonish Dad, one wonders if Dad’s filing so many motions was part of the problem since the Opinion specifically noted “motions” in the plural.) After a hearing, the Judge found that the children were well adjusted to and liked their “school, friends, home and community”, there were no mental or physical health issues and all other factors being considered, Mom would remain the primary parent in Utah. The Supreme Court upheld the judge on the basis he had not abused his discretion in issues of interviewing the children in chambers and not allowing cross-examination of the children, credibility of witnesses and overall best interest test.

Bottom line: if you want to move anywhere with your child, you must be prepared to address the factors enumerated in MCA §40-4-212 and put your child’s best interest first–not your own.

About the Author

Kay Lynn LeeHailing originally from Georgia, Kay Lynn Lee received her BS from the University of Alaska, Anchorage in 1984 and her JD from the University of San Diego in 1987. Deciding to retire 2004, she discovered it did not suit, so she “unretired” in 2005. She now practices primarily in the field of family law which is both a joy and a challenge.View all posts by Kay Lynn Lee →

Disclaimer: This website is intended to be used only for educational purposes, to give you a general understanding of the law and is not intended to provide specific legal advice to any situation. Laws vary from state to state and the information contained in this website addresses only Montana law, unless otherwise noted. Legal issues are varied and complex and this website should not be used as a substitute for competent legal advice from an attorney in your state. If you have a specific questions regarding your situation, please call an attorney. None of the information contained on this website creates an attorney-client privilege.

%d bloggers like this: