In need of some legal advice
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    In need of some legal advice

    Or a reference for a good lawyer. I'll try to make the scenario short, so that I don't bore anyone.

    I have shared legal and physical custody of my nine year old son. We split our time with him each week evenly. I live and work in Indianola, as does his mother.

    I recently got engaged, and my fiance works in Johnston. We have been looking for houses in Norwalk, which makes her drive a little shorter. I have told my son's mother that, in the event that we buy a house in Norwalk, I want my son to stay in Indianola schools, and that I am willing to do all the driving as far as picking him up. She insists that if we move to Norwalk, she will sue for full custody, as the drive will be too much change for him.

    So here's my question(s):

    1. Am I being reasonable, or is this too much of a change for him?

    2. Is it possible to sue for the ability to move, without changing the type of custody we have? I really do not want to take him away from his mom, which I feel I would have a better than average chance of doing, because I feel that a child needs both parents.

    3. Can I sue for that ability, and if I lost, choose to stay in Indianola without a custody change?

    4. Anyone know a good lawyer?

    I would really appreciate any thoughts or advice anyone might have. I usually love to post about "important" topics of the day, but for me this is a big one. Thanks.




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    Re: In need of some legal advice

    This is deep. Seems to me you can move to Norwalk with no penalty - you are still witin state and you are keeping him in same schools. She sounds overly protective for your 9 year old son. He should see the state. I would get a woman lawyer.


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    Re: In need of some legal advice

    I have a close friend who is the top divorce/child custody attorney in Las Vegas, Nevada.



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    Re: In need of some legal advice

    Quote Originally Posted by alaskaguy View Post
    I have a close friend who is the top divorce/child custody attorney in Las Vegas, Nevada.
    I'm not sure I could afford to fly in a legal team. If your friend knew a good one around Iowa, that would help tremendously. Appreciate the thoughts, guys. I wasn't sure if anyone would be on and posting at this time of night, and it's good to get some of these thoughts off my chest.



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    Re: In need of some legal advice

    You should def move upon your plans.

    Am I an attorney? No. But I did sleep in a Holiday Inn Express last night.



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    Re: In need of some legal advice

    The drive from Norwalk to Indianola would be too much for a 9 year old? I think your problems with your ex in this are may be just starting.

    Good luck.



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    Re: In need of some legal advice

    what does your original divorce agreement say about one of the parents moving? was there any clauses about moving out of the city, county, or state? look through that, it may answer some of your questions.



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    Re: In need of some legal advice

    ***Nothing I say here should be interpreted as "legal advise" - you would need to consult an attorney for that.*** Consider this advise from a friend.

    Shared physical custody is relatively rare and requires that the couple get along well enough to communicate and cooperate for the sake of the child. It is often great for the child though if it works out.

    It doesn't look like Norwalk is all that far from Indianola. You would know better than any of us whether that drive would be too difficult for your son. That would probably depend on how often he trades hands. If it is a few times a week that's nothing, but if its a few times a day that trip might be stressful. Since I don't know your son or schedule, that is about all I have. The well-being of your son should probably be paramount in your decision making process though. So, if that is the case and you come to the conclusion that the move would not be too much of a burden on him then it probably would not be.

    I would not sue for the ability to move, and don't think you could. There is no "ability to move" cause of action. I assume that your custody arrangement is governed by your divorce decree, so what would probably happen if there was a custody dispute would be that someone would sue to modify that decree. In order to do so the suing party would need to show that there was a material change in circumstances since the decree was entered that would justify the modification. If your wife were to sue for custody I assume she would allege that your move was that material change. I would be surprised if a court would buy into that, but you never know. Assuming you are otherwise a good father, the worst you would probably be looking at would be continued shared legal custody and her having primary physical care while you got liberal visitation rights (probably as the parties could agree or every other weekend, one weeknight, and split holidays). In the case that she was awarded primary physical care she would probably also be awarded child support. On the flip side, you could ask for and fight for primary physical care in the event that she were to sue you.

    As far as you initiating the action, I don't know what you would ask for. There is probably no material change in circumstances that would support modifying the divorce decree. You would essentially be asking the judge to rule on the case before anything has happened yet, which they would be very, very unlikely to do. If you think about it, you would be asking the judge to say "this move was not a material change" before it even occurs. However, he has very little to base this on since it has not occurred. If he were to rule in your favor then he would leave your wife without a remedy if you son developed a phobia of Norwalk and had a mental breakdown whenever he entered city limits. Far out scenario of course, but that is why judges rarely rule on stuff before it happens.

    My personal recommendation would be for the two of you to attend mediation and try to resolve things without a nasty court battle, which probably would not be in the best interests of your son. The Center for Creative Justice in Ames provides mediation services. Here is a link to their website:

    Center for Creative Justice


    Last edited by Kyle; 08-18-2007 at 09:41 AM.

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    Re: In need of some legal advice

    Quote Originally Posted by Kyle View Post
    ***Nothing I say here should be interpreted as "legal advise" - you would need to consult an attorney for that.*** Consider this advise from a friend.

    Shared physical custody is relatively rare and requires that the couple get along well enough to communicate and cooperate for the sake of the child. It is often great for the child though if it works out.

    It doesn't look like Norwalk is all that far from Indianola. You would know better than any of us whether that drive would be too difficult for your son. That would probably depend on how often he trades hands. If it is a few times a week that's nothing, but if its a few times a day that trip might be stressful. Since I don't know your son or schedule, that is about all I have. The well-being of your son should probably be paramount in your decision making process though. So, if that is the case and you come to the conclusion that the move would not be too much of a burden on him then it probably would not be.

    I would not sue for the ability to move, and don't think you could. There is no "ability to move" cause of action. I assume that your custody arrangement is governed by your divorce decree, so what would probably happen if there was a custody dispute would be that someone would sue to modify that decree. In order to do so the suing party would need to show that there was a material change in circumstances since the decree was entered that would justify the modification. If your wife were to sue for custody I assume she would allege that your move was that material change. I would be surprised if a court would buy into that, but you never know. Assuming you are otherwise a good father, the worst you would probably be looking at would be continued shared legal custody and her having primary physical care while you got liberal visitation rights (probably as the parties could agree or every other weekend, one weeknight, and split holidays). In the case that she was awarded primary physical care she would probably also be awarded child support. On the flip side, you could ask for and fight for primary physical care in the event that she were to sue you.

    As far as you initiating the action, I don't know what you would ask for. There is probably no material change in circumstances that would support modifying the divorce decree. You would essentially be asking the judge to rule on the case before anything has happened yet, which they would be very, very unlikely to do. If you think about it, you would be asking the judge to say "this move was not a material change" before it even occurs. However, he has very little to base this on since it has not occurred. If he were to rule in your favor then he would leave your wife without a remedy if you son developed a phobia of Norwalk and had a mental breakdown whenever he entered city limits. Far out scenario of course, but that is why judges rarely rule on stuff before it happens.

    My personal recommendation would be for the two of you to attend mediation and try to resolve things without a nasty court battle, which probably would not be in the best interests of your son. The Center for Creative Justice in Ames provides mediation services. Here is a link to their website:

    Center for Creative Justice
    We are looking at homes on the far southeast side of Norwalk, which makes for a 15 minute drive. I am overprotective if anything, so I have been asking him questions about how he feels about a potential move. Everything he has said to me indicates more excitement than anything. His mother went so far as to tell him that if I move there, he will only see me every other weekend. That upset me a lot, and I'm worried that he will be kept on edge about it with things like that, while we are trying to sort it out.

    We split the week right down the middle. I have him Sunday through Tuesday every week, and we alternate Wednesdays. I don't want to risk losing any time whatsoever with him. I also feel that a child needs both parents equally, and do not want to sue for full custody.



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    Re: In need of some legal advice

    Quote Originally Posted by Cyclonepride View Post
    We are looking at homes on the far southeast side of Norwalk, which makes for a 15 minute drive. I am overprotective if anything, so I have been asking him questions about how he feels about a potential move. Everything he has said to me indicates more excitement than anything. His mother went so far as to tell him that if I move there, he will only see me every other weekend. That upset me a lot, and I'm worried that he will be kept on edge about it with things like that, while we are trying to sort it out.

    We split the week right down the middle. I have him Sunday through Tuesday every week, and we alternate Wednesdays. I don't want to risk losing any time whatsoever with him. I also feel that a child needs both parents equally, and do not want to sue for full custody.
    Where does your son go to school and how would the move affect how he gets there?

    It sounds like your ex just being a *itch. If it goes to court you can also ask to continue the joint custody arrangement. The #1 factor that a court has to always look at is what is in the best interests of the child. Assuming competent parents, it is usually assumed that a child will be better off if raised by both parents. If I were a judge my biggest concern would be the fact that the parents could not resolve this without a court action, not that you moved.

    It sounds like there are some underlying issues between you and your ex that are probably driving this more than the move. I would still recommend mediation, or perhaps counseling, over a court action. Resolving things this way would probably be in the best interest of your son, and that is hopefully something that you and your ex can both agree on to at least get you both to the table. There is probably not anything that you can do as far as initiating an action, but if your ex were to do so I don't think she would have much of a case. Again, this is not legal advise.

    For legal advise you should consult an attorney. I don't know of any that I can recommend in your area, but anyone who claims to practice family law should be able to provide you with the advise you seek during a consultation. You may want to ask how much such a consultation will cost prior to going in.



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    Re: In need of some legal advice

    Quote Originally Posted by Kyle View Post
    Where does your son go to school and how would the move affect how he gets there?

    It sounds like your ex just being a *itch. If it goes to court you can also ask to continue the joint custody arrangement. The #1 factor that a court has to always look at is what is in the best interests of the child. Assuming competent parents, it is usually assumed that a child will be better off if raised by both parents. If I were a judge my biggest concern would be the fact that the parents could not resolve this without a court action, not that you moved.

    It sounds like there are some underlying issues between you and your ex that are probably driving this more than the move. I would still recommend mediation, or perhaps counseling, over a court action. Resolving things this way would probably be in the best interest of your son, and that is hopefully something that you and your ex can both agree on to at least get you both to the table. There is probably not anything that you can do as far as initiating an action, but if your ex were to do so I don't think she would have much of a case. Again, this is not legal advise.

    For legal advise you should consult an attorney. I don't know of any that I can recommend in your area, but anyone who claims to practice family law should be able to provide you with the advise you seek during a consultation. You may want to ask how much such a consultation will cost prior to going in.
    My son is in Indianola schools, and I have made it clear that I do not want to change that at all. I want this to be as painless as possible for everyone, especially my son. I always go into work at 7 am, and I drop him off at her house every day, and he goes to school from there, which is about a block away. The real change would be that he would have to leave the house at 6:40 instead of 6:55 (she lives two blocks away now), and he gets up at 6:15 every day he is with me.

    I appreciate your thoughts, Kyle, as well as everyone elses too. Thank you.



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    Re: In need of some legal advice

    my mom threatened this s*** to my dad all the time, and still does with my little bro. it has been all talk since the divorce. i would stay on top of the situation as far as getting a lawyer and such, but dont loose too much sleep over not getting to see your son as much...no judge is going to do that. no offense, but your exwife sounds nearly as wacked out as my mother.



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    Re: In need of some legal advice

    Quote Originally Posted by Cyclonepride View Post
    I would really appreciate any thoughts or advice anyone might have.
    The distance between Norwalk and Indianola is only about 20 miles. On its face, it seems to me what you want to do is reasonable enough considering the life change you are considering.

    It also seems to me that two reasonable parents having their child's best interests at heart should be able to resolve what I consider as a relatively minor change in your joint custody arrangement without the need for an attorney. If not, other issues underlie your differences.

    However you deal with your situation, consider this. A protracted dispute over the remains of your old life with your old wife is a dreadful way to start your new life with your new wife, both emotionally and financially.



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    Re: In need of some legal advice

    Quote Originally Posted by Johnny Tremain View Post
    The distance between Norwalk and Indianola is only about 20 miles. On its face, it seems to me what you want to do is reasonable enough considering the life change you are considering.

    It also seems to me that two reasonable parents having their child's best interests at heart should be able to resolve what I consider as a relatively minor change in your joint custody arrangement without the need for an attorney. If not, other issues underlie your differences.

    However you deal with your situation, consider this. A protracted dispute over the remains of your old life with your old wife is a dreadful way to start your new life with your new wife, both emotionally and financially.
    Yes, there are certainly other issues. None of which affect either parties parenting abilities. Just getting remarried jealousy issues, along with insecurities about change.

    I agree that this change should be something resolved between us. However, the only option available from her is to live in Indianola or else. No compromise whatsoever. No keeping him out of the conversation. What can you do when someone is actively scaring your child about a life change? As protective as I am, allowing her to get her way seems like an option.

    The good news I found while digging through Iowa code is that the legal standard for circumstances allowing modification seem to be 150 miles.



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    Re: In need of some legal advice

    A judge is going to be most interested in what is least disruptive to the child. In a full blown custody fight, your ex is in a stronger position because of the extra time driving the child to and from your new place, living with a new "mommy" etc. I'd avoid the custody fight and figure something else out.


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