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Child Custody and Relocation

In our last blog entry, I discussed the correct and proper steps that Katie Holmes had taken in pursuing her divorce and custody case. Katie properly planned ahead, made no mistakes and established her self as the primary parent. It probably also didn’t hurt being advised by her father (who is a divorce attorney) every step of the way. (Incidentally, you, too, can plan ahead as such by calling our firm for your free consultation). As recent news reports suggest, perhaps actress Halle Berry could have done with a little more advance planning of her own, because in contrast to Ms. Holmes she has done nothing right in her custody case.

Halle Berry has been involved in a custody battle for the past year. She and former Versace model Gabe Aubrey are the parents of a four-year old daughter named Nahla. For the first three years of Nahla’s life Halle and Gabe, who never married, co-parented their child rather effectively, even after their relationship ended. However, as usually occurs, something changed for the worse in their relationship and the co-parental bliss came to a screeching halt.

In this particular case, Halle became romantically involved with a new man, Olivier Martinez, who happened to reside in France, so Halle petitioned the court to relocate there with Nahla. As we explained in the Katie Holmes blog, relocation requests are very difficult to obtains for a variety of reasons and, when granted, only with great hesitancy by the courts. The judiciary, as aided by psychological experts, has determined that a child’s interests are best served when the two parents reside in close proximity to each other. Proximity enables the child to spend time with each parent on a frequent and consistent basis and avoids making the child travel between great distances such as across state or international boundaries. Additionally, the court’s inclination against relocations generally ensures the child remains with the same schools, churches, activities and family units that have always been in place for that child.

On rare occasion, relocation requests are met with favor. For instance, I have had cases of military personnel that received transfer orders and petitioned for relocation. Obviously, those requests are generally granted. Additionally, relocations are often granted when one parent is, to an extent, more uninvolved in the child’s life than another. In the Halle Berry case, however, none of those conducive factors was present.

The first mistake that Halle Berry made was in allowing the other parent to assume the role of primary caretaker. In the Berry/Aubrey case, Ms. Berry presumably spent a great deal of time on location making movies or on other travel related to her acting career whilst Mr. Aubrey assumed the role of primary caretaker for Nahla. Now please understand, there is nothing inherently wrong with this, and in the context of an actress in Hollywood these are exceptional circumstances. For those of us in the regular world I would strongly encourage sharing the role of parenting equally with the other parent. This practice is good for the child and it is fair to both parents. However, if one wants to later make a claim for relocation, the request will almost certainly be denied if the other parent has consistently assumed more of a parenting role than the petitioner.

Secondly, Ms. Berry made the common mistake of not planning ahead. Compare this case, again, to Katie Holmes’ brilliant execution of foresight. For the year immediately preceding her relocation request, Katie Holmes relocated herself and her child, Suri, to the desired locale of New York City. While she still had a home in California and her then-husband Tom Cruise was on location with movie projects, Holmes started spending the majority of her time at the desired new location. In contrast, Halle Berry spent an inordinate amount of time outside of her home state without Nahla, and did not attempt to establish a home in France until she had already made her request to the court for relocation. Obviously, owing to financial strictures, relocation to another state or country is a more difficult undertaking for the average case than that of a movie star. Most average clients do not own a second home. But if you do, and you wish to relocate to wherever that may be, begin as soon as possible to spend the majority of your time in that second place. If a new job is there (or the new relationship), start spending more time in that state in order to establish a pattern of regular activity. Plan ahead, if possible, by having a job already in place. Most judges will be reluctant to grant a relocation request based only upon desire alone to obtain new employment in the new state. However, if the job is ready and waiting, your chances for relocation approval increase exponentially. A final component of planning ahead to consider would be to keep your nose clean with respect to criminal issues for a preceding period of 24 – 48 months. A recent positive drug test, for instance, will put the kibosh on any relocation request; as will a criminal record or domestic violence charges. As recent developments in the Berry case concerning the allegations of assault by Mr. Martinez upon Mr. Aubrey have demonstrated, becoming involved with the wrong person can also be damaging to your petition.

The third, and not necessarily final, mistake that Ms. Berry has made was in not choosing a suitable reason for the relocation. As previously mentioned, an easily granted relocation request will include military orders, a new and secure job, or a new and secure spouse. Ms. Berry’s request was motivated by simple love for her new beau, Olivier, which, while a powerful motivator of human behavior, has little substantial value in court considerations, particularly at the risk of estranging a child from an established parental figure. Halle met Olivier Martinez, fell in love, and, on her own accord, promised to be with him until death do they part. Fulfilling those promises came to a screeching halt for Berry when Mr. Aubrey informed her that their joint custody arrangement forbade her from relocating to France with Nahla, thus the ongoing custody battle began in earnest. While I have seen the court grant a relocating request on the establishment of a new marriage, this has been a rare occurrence in my experience. In such cases, the parent seeking relocation was clearly the primary parent for the child, both on paper and in practice. Generally, a relocating parent will have to be able to demonstrate to the court that he or she cannot earn a living in the current state of residence and a move is required to maintain the child’s standard of living. There must be some compelling reason to move other than a mere wish, e.g. – the new spouse is supporting the family and the previous parent is not, a new job for the spouse and/or parent, or military orders. Few cases outside these narrow examples will be granted.

In summation, if you envision a relocation request in your future, remember these steps, which are simple enough to implement but require the exercise of some patience: Establish yourself as the primary parent; Plan well in advance and start establishing the second home and career in the desired relocation area; Keep your criminal record very clean; Ensure your reasons for relocating are extremely compelling. If these proper measures are put into place, it will go a long in establishing your case. Finally, although it may go without saying, relocation requests will never be granted without counsel.

Call Cortez & Hoskovec, LLC today for your free consultation on your request for custody or relocation.

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