Tips For Concerned Mother Who Wishes To Move Away With Her Children

by Alexandra Leichter

The 1996 California Supreme Court decision allowing a custodial parent to remove the child from California has appeared to give custodial mothers a brand-new sense of freedom. Headlines in newspapers heralded the new age that seemed to signal a return to mothers' rights. All is not, however, as it was touted to be. Trial judges' interpretations of this Supreme Court decision should give custodial mothers a bit of a pause before they can assume that they can pack up their children and be free to leave on the morning train. Indeed, a more recent California Appellate Court opinion, decided soon after the Supreme Court issued its landmark case, made it evident that when a custodial mother requests an order for moving away with her children, the courts will still take great care to examine the relationship between the non-custodial father and the children before they will automatically rubber stamp the mother's requested exit visa. This literally means that mothers still will face substantial burdens in court.

It has been a not-too-well-kept secret that the non-custodial father often claims that the mother's wish to move out of California with the children is merely the final step in a lengthy list of attempts to alienate the children from the father. This claim has often resulted in the courts examining, microscopically, the custodial mother's motivation for the move. While this is no longer permissible under the Supreme Court decision, the courts can still examine the relationship between the father and the child to determine whether the move will be detrimental for the child-father relationship. Furthermore, if the father can prove that the move is made for the distinct purpose of attempting to alienate the child from the father, the courts still have authority to refuse the requested move. (It should be noted that it is never the parent who is restrained from moving, only the child can be forbidden to do so, because adults have constitutional freedom to travel). Thus, one of the major tasks facing the custodial mother wishing to move out of state with the children is to refute any claims of "parental alienation," and to prove that the father's claims of being?g the more child-centered parent Is not accurate. The task of the moving mother is thus two-fold: Disprove that the intent of the move is to alienate the father, and disprove that the children should be left in the custody of the father in the event the mother intends to move out of state.

While every case is unique, and it is difficult to list a set of guidelines applicable to all cases, the following should direction for the custodial mother who intends to move away with her children.

1. Never make any threats to remove the children from the state in the event the father refuses to comply with your requests. Even if your subsequent motives for the move may be valid, evidence of prior threats you made will return to haunt.
   
   
2. Be very careful when making accusations of physical or sexual abuse against the father. Allegations of physical or sexual abuse of children is difficult to prove, especially if the children are very young, and certainly if physical signs of abuse are not visible. If the allegations cannot be proven, fathers will often claim that the allegations were false and were made to alienate the children from the father. (Note the important difference between a "false" claim of abuse, and an "inability to prove" the abuse) In a hearing on the mother's request to move with the children, fathers will often submit as proof of "parental alienation" the prior unproven allegations of sexual or physical abuse, and claim that such allegations were "false."
   
   
3. Keep accurate records and notes regarding your child's schedule of events and occurrences. The non-custodial father may claim to have been very actively involved in the child's life when such has not been the case. Your accurate reporting of dates and times when he has failed to pick up the child, or has returned the child early because he was unable to handle the child's actions, his refusal to take the child to a doctor or dentist appointment because of his own work or play schedule, his failure to attend parent-teacher conferences, his refusal to follow through on doctors' recommendations, etc. will be vital evidence to show that the father's involvement with the child has not been as extensive as he may claim.
   
   
4. Obtain and keep copies (certified, if possible) of police reports in all cases where there have been reports of violence either against you or the child.
   
   
5. If you have evidence of the father's prior involvement in either child sexual or physical abuse cases, or if he has subsequently or previously been married and there have been allegations of spousal abuse in those marriages, be sure to obtain the appropriate records well in advance of your court hearing.
   
   
6. If you have experienced difficulties with the father during transfers of the child for visitation, make sure that you have neighbors or friends present during such transfers, to be available to testify to the father's actions.
   
   
7. Learn to separate your anger toward your ex-husband from custodial Issues. Women are often accused of acting "emotionally" while men are reputed to act "rationally." Often, your ill-advised outburst resulting from an emotional reaction may do more harm to your case than you may imagine.
   
   
8. Do not attempt to negate the father's existence and role in the children's lives. Do not change your child's surname on school or medical records unless you have a court order to do so, even if the child's surname does not reflect yours or that of his siblings. Evidence of such name change will become a key piece of evidence in the father's claim of "parental alienation" against you.
   
   
9. Keep the father apprised of all major events in the child's life, such as school and extracurricular events and medical procedures preferably in writing. Always retain a copy of all correspondence. If the father fails to attend the events or fails to prepare the child appropriately, such actions should be noted in your diary or notes, to be available at the time of hearing on your "move-away" case.
   
   
10. Do not encourage your child to refer to his father by his proper name. Your children should not call your new spouse or significant other by the appellation "father," "dad," or any other name that denotes the transfer of the father identity to the person with whom you are presently living. When referring to the children's father in your conversation with them, do not refer to the father b his proper name, but call him your father," or "your dad."
    
    
11. Do not ever make any derogatory remarks about the father or his family in the children's presence.
    
    
12. Do not denigrate the activities the father shares with the children. So long as your move out of state is not motivated by the desire to alienate your children from their father, your task in court will be to show, through a history of your actions, as well as those of the children, that you have been the primary caretaker of the children, that you have not interfered with the father's visitation rights. that you have been cooperative in attempting to make joint decisions regarding the children, that you hhave done everything to foster the relationship between your children and their father, and that you have done nothing to denigrate or alienate the father from his children.

reprinted with kind permission from SOLO: A Guide for the Single Parent

Alexandra Leichter is a family law specialist practicing in Beverly Hills, California