You Get Divorced And Then You Move

If you are going to move after a divorce, does it affect child custody?

Kristen Culver and Craig Culver marry on May 9, 2008.

They have three kids from this marriage.

On January 16, 2018, Craig files a complaint for divorce.

On July 23, 2018, the Chancery Court Judge Orders that Kristen gets primary physical custody of the kids.

However, the visitation schedule allows Craig to visit with the kids about fourteen days a month.

If Craig attends extracurricular activities with the kids, he will see them even more.

After the divorce, Kristen starts dating someone else.

Does Moving Affect Child Custody After Your Divorce?

Her boyfriend is in the Navy.

Can you see where this is going yet?

The boyfriend is transferring to Virginia.

This is about fourteen or fifteen hours away from where Kristen was living in Mississippi.

So Karen wants to move with her new boyfriend and the kids.

Is moving going to affect child custody for Kristen?

I’ll give you one guess.

Kristen files a Complaint to Modify custody since the visitation in the original Order would not work.

Does she win?

Craig counter-claims and says this move by Kristen is “a substantial and material change in circumstances which adversely affects the
parties’ minor children, which requires a modification of the prior Order of the Court.”

He asked that he be awarded custody, that his child support obligations be terminated, and that Kristen be ordered to pay child support.

On August 11, 2021, this case goes to trial and the Chancery Court Judge agrees that moving to Virginia creates “a material change in circumstances that is adverse to the welfare of the minor children.”

If a Judge writes this, bad things are about to happen to you.

The Chancery Court Judge then says, after considering the Albright (there’s that case again so make sure you read it). factors, it is in the “best interest of these three minor children would be served in awarding physical custody to Craig.”

That’s got to hurt!

Kristen appeals to the Mississippi Supreme Court (which sent it over to the Court of Appeals) because she disagrees with the Judge.

Here’s some legal mumbo jumbo the Mississippi Court Of Appeals said:

Craig had the burden of proof related to his motion to modify custody. That burden was set forth in Robinson v. Brown, 58 So. 3d 38, 42-43 (Miss. Ct. App. 2011), as follows:

The law in Mississippi on custody modification is well settled. In order to modify a child-custody order, the party seeking the change in custody bears the initial burden of proving that there has been a material change in circumstances. In determining whether a material change in circumstances has occurred, the chancellor must examine the totality of the circumstances.

If the chancellor finds that a material change has occurred, the chancellor must then make a separate assessment to determine if the change is adverse to the child’s welfare.

In the event of an adverse material change in circumstances, “the chancellor may determine whether the best interest of the child requires a change in custody.”

When analyzing the best interest of the child for the purposes of custody modification, the chancellor must make “on-the-record findings for each of the Albright factors.”

So what’s all that legal mumbo jumbo mean in English?

It just means Craig has to prove that custody should be changed to him based on the Albright factors (there’s that case again, did you read it yet?).

Kristen says on appeal there was no adverse impact on the kids.

The Mississippi Court Of Appeals says this:

In Munday v. McLendon, 287 So. 3d 303, 310 (Miss. Ct. App. 2019), we explained:

Although Mississippi law generally has recognized that a parent’s relocation alone does not constitute a material change in circumstances, we note that the impact of a relocation of the custodial parent upon the child constitutes a factor that the chancellor permissibly considers on the motion for modification.

This Court has found even a short move can result in a material change in circumstances where the move causes the custody agreement to become impractical.

The Court of Appeals then says:

In Giannaris v. Giannaris, 960 So. 2d 462, 468 (Miss. 2007), the Mississippi Supreme Court held “that the mere moving of the custodial parent does not constitute a material change in circumstances for child custody modification purposes.”

“Nor is the distance moved ‘dispositive as to whether a material change in circumstances has occurred; it is the effect the move has on the child and the custody arrangement that is dispositive.

Kristen loses.

Why?

The boys had lived in Hurley, Mississippi all their lives.

The boys’ extended family was in Hurley and they had close relationships with them.

Craig still lives in the marital home where the boys grew up.

This is stability (which a Judge likes) versus moving to Virginia where the boys have no family, not relationships with anyone, etc.

The Court Of Appeals then discussed the Albright factors that the Chancery Court Judge reviews.

The Bottom Line About Moving With Your Kids

The bottom line is if you are going to move a long way from home after a divorce and you have the kids, you better call a lawyer FIRST!