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LEAVING THE STATE OF ALABAMA DIVORCE– CHILD CUSTODY (RELOCATION)

 

An issue that often arises in Alabama divorce, child custody and post divorce modification cases is whether one parent may leave the state and relocate with the minor child.  These same issues arise in family court cases in Alabama where an Order addressing paternity and custody has been entered.  In any case in Alabama in which custody or visitation in involved the Alabama Relocation Act, Alabama Code Section 30-3-166.  In short form the Act provides for the technical notice that is required to be given by a parent seeking to relocate and the procedure the court must use to evaluate such a request.  Alabama law actual requires that the text of the Act be included in any order establishing custody and/or visitation rights with a child.  The Act provides:

Alabama law requires each party in this action who has either custody of or the right of visitation with a child to notify other parties who have custody of or the right of visitation with the child of any change in his or her address or telephone number, or both, and of any change or proposed change of principal residence and telephone number or numbers of a child.  This is a continuing duty and remains in effect as to each child subject to the custody or visitation provisions of this decree until such child reaches the age of majority or becomes emancipated and for so long as you are entitled to custody of or visitation with a child covered by this order.  If there is to be a change of principal residence by you or by a child subject to the custody or visitation provisions of this order, you must provide the following information to each other person who has custody or visitation rights under this decree as follows:

(1)       The intended new residence, including the specific street address, if known.

(2)       The mailing address, if not the same as the street address.

(3)       The telephone number or numbers at such residence, if known.

(4)       If applicable, the name, address and telephone number of the school to be attended by the child, if known.

(5)       The date of the intended change of principal residence of the child.

(6)       A statement of the specific reasons for the proposed change of principal residence of the child, if applicable.

(7)       A proposal for a revised schedule of custody of or visitation with a child, if any.

(8)       Unless you are a member of the Armed Forces of the United States of America and are being transferred or relocated pursuant to a non-voluntary order of the government, a warning to the non-relocating person that an objection to the relocation must be made within 30 days of receipt of the notice or the relocation will be permitted.

You must give notice by certified mail of the proposed change of principal residence on or before the 45thday before a proposed change of principal residence.  If you do not know and cannot reasonably become aware of such information in sufficient time to provide a 45- day notice, you must give such notice by certified mail not later than the 10thday after the date that you obtain such information.  Your failure to notify the other parties entitled to notice of your intent to change the principal residence of a child may be taken into account in a modification of the custody of or visitation with the child.  If you, as a non-relocating party, do not commence an action seeking a temporary or permanent order to prevent the change of principal address of the child within 30 days after receipt of notice of the intent to change the principal residence of the child, the change of principal residence is authorized.

Any court addressing the relocation of a minor child must address and consider the following issues as set forth in Alabama Code Section 30-3-169.3

(1) The nature, quality, extent of involvement and duration of the child’s relationship with the person proposing to relocate with the child and with the non‑relocating person, siblings and other significant persons or institutions in the child’s life.

(2) The age, developmental stage, needs of the child and the likely impact the change of principal residence of a child will have on the child’s physical, educational and emotional development, taking into consideration any special needs of the child.

(3) The increase in travel time for the child created by the change in principal residence of the child or a person entitled to custody of or visitation with the child.

(4) The availability and cost of alternative means of communication between the child and the non‑relocating party.

(5) The feasibility of preserving the relationship between the non‑relocating person and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.

(6) The preference of the child, taking into consideration the age and maturity of the child.

(7) The degree to which a change or proposed change of the principal residence of the child will result in uprooting the child as compared to the degree to which a modification of custody of the child will result in uprooting the child.

(8) To the extent which custody and visitation rights have been allowed and exercised.

(9) Whether there is an established pattern of conduct of the person seeking to change the principal residence of a child, either to promote or thwart the relationship of the child and the non‑relocating person.

(10) Whether the person seeking to change the principal residence of a child once out of the jurisdiction, is likely to comply with any new visitation arrangement and the disposition of that person to foster a joint parenting arrangement with the non‑relocating party.

(11) Whether the relocation of the child will enhance the general quality of life for both the custodial party seeking the change of principal residence of the child and the child, including, but not limited to, financial or emotional benefit or educational opportunities.

(12) Whether or not a support system is available in the area of the proposed new residence of the child, especially in the event of an emergency or disability to the person having custody of the child.

(13) Whether or not the proposed new residence of a child is to a foreign country, whose public policy does not normally enforce the visitation rights of non‑custodial parents, which does not have an adequate functioning legal system or which otherwise presents a substantial risk of specific and serious harm to the child.

(14) The stability of the family unit of the persons entitled to custody and visitation with a child.

(15) The reason of each person for seeking or opposing a change of principal residence of a child.

(16) Evidence relating to a history of domestic violence or child abuse.

(17) Any other factors that in the opinion of the court is material to the general issue or otherwise provided by law.

In a case where one party is seeking a modification of the divorce decree to allow relocation there is a presumption that relocation is not in the best interest of the child and thus a larger hurdle to overcome.  Alabama Code Section 30-3-169.4.

The process of evaluating and considering relocation or a move out of state with a minor child is a very fact intensive evaluation under Alabama law and requires the skill and strategy only an experienced Alabama divorce and child custody lawyer can provide.  A Birmingham divorce attorney or more specifically a Birmingham child custody attorney must know how these issues are viewed and addressed by the Jefferson County, Birmingham Divorce Bench, the Jefferson County Birmingham Family Court Bench, the Divorce Bench in the Jefferson County – Bessemer Cut-Off, The Family Court Bench in the Jefferson County – Bessemer Cut-Off and by those judges hearing divorce cases in Shelby County, Alabama as well as the Family Court Bench in Shelby County, Alabama.  Judges view the issue of relocation extremely different and your case must be tailored by an experienced Birmingham Child Custody Lawyer to fit the pattern most likely to succeed with the particular Jefferson County or Shelby County judge assigned to hear your case.  The same is true in the Divorce and Family Courts of Madison, Morgan, Blount, Cullman and St.Clair Counties.  Knowledge of not just the law but the local judges is key.

If you are a parent, grandparent or other party with custody or visitation rights with a minor child and are planning to move out of state or to otherwise relocate you must seek out and retain an experienced Birmingham child custody attorney to help you navigate these treacherous waters. Even if you have sole custody relocation is an issue that must be addressed by the court and does not always result in a favorable ruling.  Preparation, planning and strategy are key so that the facts can be painted in the light most favorable to your desired results.  The same is true if you are a party seeking to block relocation.  You have rights that need to be aggressively protected.  Call the experienced Birmingham child custody attorneys at The Oncale Firm for a free consultation today 205-458-9805.