Mobility Rights v. Custody and Access

[lemontree]

My husband has a little boy aged 6. He is living shared custdy 50/50 between us and his mother and mothers husband. We both live in the east end approx 25 mion away from eacho other. The boy attends school in his mothers area and we drive him back and forth on our week. We have a drafted agreement that states he is to attend school in the mothers area, so long as its within the area that she is currently residing. This agreement is not signed as there were some financial issues with the lawy, but it is what they have been following for the past 3 1/2 years.

The mother just sent a msg stating that she was looking at new houses and wants to move to the west end of the city. Approx 60 min away from our current residence. She suggested that the boy go to school half way between both parents. My husband and I are concerned because half way between us is downtown Ottawa, and we don't think this is best for the child. The only school options he would have are based on a friends address and are not in the best of areas (surrounded by social housing) In areas with high crime rate, etc. He would be taken away from all his friends, farmiliarities and all his family lives in the East end. We also don't think that we should have to drive even further and spend even more money on gas based on her decision to move, afterall we have been conveniencing her the past 3 years driving 20 min each way so that he could attend school in her area when we have him equal amount, if not more by the amount of times she has asked us to take him on her weeks..

My husband suggested that there son attend school in our area with all his neighbour hood friends, in a place where he is farmiliar and feels safe (close to one of his parents instead of far away from both) . He could stay with us during the week and the mother could take him three weekends out of the month and have a weekly visit at any time. The only catch with this is that it would reduce her custody to %40 and increase ours to %60 therefore meaning she would no longer recieve child support and I am assuming she will cause a huge fuss about this.

I was wondering if anyone has ever dealt with a situation like this, and what they tink a judge would call.
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[InterprovincialParents]

Tougher to do with an ex that refuses access and a choice between one child's parents or the other...we moved to be near my son's father after almost a year of access denial with sd.

Now, we do access interprovincially...and hate that we are so far from one, and so close to one who does not want access.

[billiechic]

Thanks LV. I know it is workable, I just wish it wasn't so far. I'm more than willing to continue to commute so that she spends equal time with both her parents. It's just difficult.

[logicalvelocity]

I hear what DTTE is saying and agree. Mobility clauses do not restrict where a parent's may live, as an individual and their choice or chartered freedom remains. However, mobility clause, restricts where the child may live.

Billie, the prospect that you may face concerning the future, and mobility, is challenging but can be accommodated. I live in a different jurisdiction as my child, and exercise my child's custody and access rights to the tune of seven vehicles in six years. Despite the hurdles, Joint Custody and rubber stamp access is workable and somewhat suggests my continued commitment towards my own child.

[dadtotheend]

I find it unconstitutional for one parent to dictate where the other lives,

Couldn't disagree more.

When two people have a child together they make a commitment to each other that survives their breakup.

It isn't one parent dicatating to the other. It is the child's need that is being met.

[blinkandimgone]

That's a challenge billie. When our kids were younger we pretty much knew what schools they would go to from elementary to high school and we had the school board send us detailed maps of the district for each school. We took that to our realtor and asked him to only show us houses within both districts. We didn't want to look at houses all over and fall in love with something outside the district, then have to choose between the house and the school. It took a lot of time - and patience for both us and the realtor - but we found the right place.

[billiechic]

I'm about to see the ramifications of mobility myself. Ex is moving to Bradford, was supposed to move down to Vaughan. DD will have to continue commuting to school permanently.

My plans to move to Vaughan are also on hold, as Lawyers bills are preventing me from being able to move. Can't afford to rent! The possibility to buy a home closer to Vaughan, but still in Brampton has come up, but this leaves DD commuting every day permanently.

It's hard to predict the future, so we haven't actually included a mobility clause per se. The order will determine that neither of us can change her school without written consent of the other. But that puts a big restriction on where I can live in the future... I guess it's what's best for her, at least right now. Just don't want to end up back at court in a couple years...

[InterprovincialParents]

As for the change...unfortunately, until parents start sticking up for and fighting for their rights and their childrens' right en masse, we are too easily swept under the rug by the economy, by green issues, and by other more popular political issues that grab attention and effect more canadians' heartstrings and wallets.

[InterprovincialParents]

Further studies have actually been conducted. Perhaps they have not been available to the general public, but there have been quite a few studies in recent years on mobility, on financial, and on divorce and the effect it has on children of divorce over their lifetime...

I am not a fan of the mobility clause. I find it unconstitutional for one parent to dictate where the other lives, but that is likely my personal bias from having a non-involved father and a mother that refuses access...why should either of those parents dictate location and mobility terms?

[ConcernenedStepMom78]

If anyone cares to know I have been doing extensive research on Relocation Issues in Child Custody Cases. YOu would be surprised at what I have found thus far. Several Psychological Studies as well as a book recently Published in the United States.....

Amazon.com: Relocation Issues in Child Custody Cases (9780789035349): Philip M. Stahl, Leslie M. Drozd: Books

The individuals that wrote this book were pyschologists that conducted child assessments in such cases for the last 13 years and based this book off of a Study done by ...Braver Ellman and Fabricius in 2003 which referenced a case in the United States: Marriage of Burgess (1996) 13 Cal.4th 25 , 51 Cal.Rptr.2d 444; 913 P.2d 473 [No. S046116. Apr 15, 1996.] and

Marriage of LaMusga (April 29, 2004). California Supreme Court, S107355, 32 C4th 1072, 12 CR3d 356, 88 P3d 81, FIRST ALERT #F-2004-1143


which are coincidently listed in a publication in March 1998 funded by Sttus of Women Canada's Policy Research Fund titled: Relocation of Custodial Parents: Final Report By Dr. Martha Bailey Faculty of Law, Queen's University and Prof. Michelle Giroux, Faculty of Law, Civil Law Section, University of Ottawa

Now here is the odd issue Within these studies everyone agrees a need for Change on these issues but since 1998 no further studies in Canada have been Conducted, and nothing has changed

[ConcernenedStepMom78]

Sorry for getting all legalise oneveryone.

[ConcernenedStepMom78]

The only thing I can say is that these laws in Michigan were put in place 41 yeas ago, because the conflict was recognized and adjusted accordingly.

[ConcernenedStepMom78]

Downside I cannot type LOL....Law not LAe

[ConcernenedStepMom78]

And YES I do my homework and I have a great passion for LAe in regards to Children's Rights.

[ConcernenedStepMom78]

Just so you can understand here is how the Michigan Law is stated:


CHILD CUSTODY ACT OF 1970 (EXCERPT)
Act 91 of 1970

722.31 Legal residence change of child whose parental custody governed by court order.
Sec. 11.
(1) A child whose parental custody is governed by court order has, for the purposes of this section, a legal residence with each parent. Except as otherwise provided in this section, a parent of a child whose custody is governed by court order shall not change a legal residence of the child to a location that is more than 100 miles from the child's legal residence at the time of the commencement of the action in which the order is issued.
(2) A parent's change of a child's legal residence is not restricted by subsection (1) if the other parent consents to, or if the court, after complying with subsection (4), permits, the residence change. This section does not apply if the order governing the child's custody grants sole legal custody to 1 of the child's parents.
(3) This section does not apply if, at the time of the commencement of the action in which the custody order is issued, the child's 2 residences were more than 100 miles apart. This section does not apply if the legal residence change results in the child's 2 legal residences being closer to each other than before the change.
(4) Before permitting a legal residence change otherwise restricted by subsection (1), the court shall consider each of the following factors, with the child as the primary focus in the court's deliberations:
(a) Whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent.
(b) The degree to which each parent has complied with, and utilized his or her time under, a court order governing parenting time with the child, and whether the parent's plan to change the child's legal residence is inspired by that parent's desire to defeat or frustrate the parenting time schedule.
(c) The degree to which the court is satisfied that, if the court permits the legal residence change, it is possible to order a modification of the parenting time schedule and other arrangements governing the child's schedule in a manner that can provide an adequate basis for preserving and fostering the parental relationship between the child and each parent; and whether each parent is likely to comply with the modification.
(d) The extent to which the parent opposing the legal residence change is motivated by a desire to secure a financial advantage with respect to a support obligation.
(e) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(5) Each order determining or modifying custody or parenting time of a child shall include a provision stating the parent's agreement as to how a change in either of the child's legal residences will be handled. If such a provision is included in the order and a child's legal residence change is done in compliance with that provision, this section does not apply. If the parents do not agree on such a provision, the court shall include in the order the following provision: “A parent whose custody or parenting time of a child is governed by this order shall not change the legal residence of the child except in compliance with section 11 of the “Child Custody Act of 1970”, 1970 PA 91, MCL 722.31.”.
(6) If this section applies to a change of a child's legal residence and the parent seeking to change that legal residence needs to seek a safe location from the threat of domestic violence, the parent may move to such a location with the child until the court makes a determination under this section.