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My Ex-Wife is Moving, Can She Take Our Child?

Your divorce is finally over. Although you wife was awarded primary physical custody, you were awarded significant parenting time with your beautiful children. Since your divorce, you have taken every possible opportunity to spend time with your children, and wish you could spend every day with them. Then the unthinkable happens: your ex-wife tells you she™s moving to another state with the children, making it almost impossible for you to spend any meaningful time with them. This is a situation that happens relatively often, and if this situation is familiar to you, you may be wondering: “Can she do this? Is there any way I can get custody of my child?”

As with several issues regarding family law, especially child custody and visitation, the answers to these questions are complex and fact specific. Generally though, in cases where the custodial parent seeks to relocate with the child, the non-custodial parent may seek to modify custody in order to obtain primary physical custody of the child. However, a custodial parent that wishes to relocate will not automatically lose custody, and the parent remaining in Georgia will not be favored to obtain custody. Every custody determination in Georgia is made with the primary consideration being the best interest of the child or children involved. See Weickert v. Weickert, 268 Ga. App 624 (2004); Bodne v. Bodne, 277 Ga. 445 (2003). To prevail in a custody modification action, the non-custodial parent must basically show that the relocation will have an adverse and material impact on the child before a court will grant the request for a change of custody. In considering what impact, if any, relocation may have on the child involved, the court may consider the following factors:

1)      A child™s relationship with a non-custodial parent;

2)      The child™s ties to local schools and friend;

3)      The child™s age;

4)      The stress and instability of relocation and the corresponding benefits of consistency and stability for the child;

5)      Interests of the entire binuclear family, which consists of the household headed by the custodial parent as well as the household headed by the non-custodial parent;

6)      The custodial parent™s reason for relocating;

7)      The dynamics of the custodial parent™s new family unit; and,

8)      Any other relevant factors.

Bodne v. Bodne Supra. Although the relocation of the custodial parent may indeed warrant a modification of child custody, it is important to note that a court cannot and will not prohibit a parent from relocating to another state. The court may be able to determine the custody of the child, but it may not prohibit a parent from moving out of state after a divorce matter.

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