Do Not Let COBRA Bite You or Your Clients By Melissa F. Brown What Is COBRA? determinate period of time beyond the termination of the plan’s regular coverage. OBRA, an acronym for the Consolidated Omnibus Budget and Reconciliation Act of 1985, Final COBRA regulations were published in the Cis a complex piece of federal legislation that may Federal Register (64 FR 5160) on Feb. 3, 1999. On Jan. be important to clients in a divorce proceeding. When 10, 2001, the Internal Revenue Service issued amend- passed, it amended the Employee Retirement Income ments to the regulations (26 CFR part 54) further clari- Security Act (ERISA), the Internal Revenue Code (IRC) fying the earlier regulations. The amendments are pre- and the Public Health Service Act. sented in a question and answer format so they are easier to understand. COBRA requires that in specific situations certain group health insurance plans must provide continued To qualify for COBRA benefits, three basic criteria health insurance coverage beyond the point such cov- must first be met: erage would otherwise terminate. As a result, certain 1. The health insurance plan must fall under employees, former employees, retirees, spouses, for- COBRA’s plan criteria; mer spouses, and dependent children, have the ability to elect health insurance coverage at group rates for a see COBRA on page 4 Relocation of Custodial Parent: Standards and Burden of Proof State-by-State By Laura W. Morgan, Esq.

Alabama v. Clements, 2005 WL 327027 (Ala. legitimate reasons for the move. A Civ. App. 2005). proposed move is legitimate if it There shall be a rebuttable pre- “was not primarily motivated by a sumption that a change of principal Alaska desire to make visitation ... more residence of a child is not in the A court making a custody deter- difficult.” House v. House, 779 P.2d best interest of the child. The party mination in cases where one parent 1204 (Alaska 1989). See also seeking a change of principal resi- chooses to move away from Alaska McQuade v. McQuade, 901 P.2d 421 dence of a child shall have the ini- must do so by determining what (Alaska 1995). tial burden of proof on the issue. If custody arrangement is in the best that burden of proof is met, the interests of the child under the cri- Arizona burden of proof shifts to the non- teria stated in AS 25.24.150(c) [the The court shall determine relocating party. Ala. Code 1975 § general custody statute], including whether to allow the parent to relo- 30-3-169.4 See Ex parte McLendon, determining whether there are 455 So.2d 863 (Ala.1984); Clements see State Survey on page 10 Note from the Chair By Stephen C. Steele [email protected] www.mijs.com

thank the entire Family Law Section for member of our Family Law Section; allowing me the honor of serving as (4) Statute Review (for technical Ichair for the 2005-06 term. I am hon- changes), chaired by Judge Louisa Abbot ored and humbled to be working side by of the Superior Court of Chatham County, side with committed and competent pro- a member of the section and frequent lec- fessionals on the executive committee and turer. Judge Abbot has already worked study groups who are contributing great- tirelessly toward making the new statute ly to the betterment of family law and internally consistent and readable. family practice this year. (5) Training, chaired by Judge Michael The topic of greatest current interest Key of Lagrange, a member of the section. and concern is the new Child Support Statute, now appearing in the pocket part At the request of Judge Abbot and Sen. of your Code as OCGA 19-6-15, also Harp, I appointed section members Sandy known as H.B. 221. Thirty-four of our sis- Bair, Karen Brown Williams, Catherine ter states, including all of our surrounding Knight and Paul Johnson to a study group states, currently use a dual income to assist the Statute Review subcommittee. approach to compute child support. The group came through quickly with high caliber suggestions for technical revisions During the 2005 session it became to the statute, many of which will be prob- inevitably clear that the Georgia General ably be incorporated at the next session. Assembly would pass a new Child Support statute employing a dual income Impressed with the work of the Statute method of computation - with or without Review study group, Senator Harp asked the approval or comments from the for another study group to assist the Forms Family Law bar. Astutely recognizing such subcommittee. Judge Jackson Harris, Kurt certainties, Sandy Bair, Carol Walker, and Kegel and I have worked with this group, Tina Shaddix Roddenberry sacrificed a but Sandy Bair and Carol Walker have long weekend to meet at Sandy’s office both continued their unselfish contribu- during the winter of 2005. Sandy is past tions far beyond what could be reasonably president of the Family Law Section; Carol expected of any lawyer trying to profitably currently serves on the executive commit- run a practice. Probably a dozen family tee; and Tina has only recently resigned lawyers have pledged their time and sup- from the executive committee after many port to assist with the training and imple- years of faithful service. Adopting the best mentation part of the statute. ideas from the statutes in Tennessee, Do you detect a pattern? The family law North Carolina, and several other states, practitioners of our section and elsewhere the team of Bair-ShaddixRoddenberry- throughout Georgia have enthusiastically Walker prepared the seed document grasped the opportunity to fulfill our pro- which evolved into H.B. 221. fessional obligation to assist in this land- H.B. 221 re-created the Georgia Child mark transition. The new guidelines will Support Commission. The commission has be of paramount importance to the chil- appointed the following subcommittees: dren and other citizens of Georgia. (1) Case Sampling, chaired by Judge When you see or talk to anyone who Debra Bernes of the Georgia Court of has worked on H.B. 221, tell her or him Appeals, a member of our section; thank you for helping our profession con- tinue to earn the respect we deserve. I am (2) Economic Study and Obligation honored and proud to be part of this pro- Tables, chaired by Roger Tutterow, Ph.D. fession and this section. Because we have of the Mercer University Business School; answered the call when needed, we all (3) Forms, chaired by Sen. Seth Harp, a have the right to be equally proud. FLR

The Family Law Review 2 November 2005 Editor’s Corner By Randall M. Kessler [email protected] www.kesslerschwarz.com

am honored to serve as the new editor of The Family Law Review. As our previous edi- tors, from Jack Turner to Kurt Kegel, have done so well, I plan to maintain our strong Itradition of bringing meaningful issues to our section in a format that is clear, easy to read and highly informative We will continue to rely on experts in Georgia as well as lawyers and other professionals from across the country to contribute to our understand- ing of issues that impact our clients. In this first issue, we are fortunate to be able to present a wonderful article on COBRA by Charleston, S.C. attorney Melissa Brown as well as a great piece on Ethics by Fulton County Judicial Officer Jeanney Kutner. Additionally, Laura Morgan (affectionately known as the “child support goddess”), has worked hard to compile a state by state analysis of relocation laws which we are pleased to include. New changes will include regular comments from the chair of our section and the chair of the Young Lawyers Division Family Law Committee. Sylvia Martin will continue to present our case law update to keep you up to the minute on Georgia appellate decisions in family law. Our newsletter can only be as successful as its contributors make it, so please con- tribute. Consider writing an article or submitting an idea to me (or to Marvin Solomiany, assistant editor, at [email protected]) by telephone, e-mail or “snail” mail. We would love to hear and post updates about happenings throughout the state and we invite you to submit information about anything affecting or involving family law any- where in Georgia. Finally, please allow me to make this first of many plugs for our annual Family Law Institute to be held in 2006 in Destin. You will hear much more about it, but Shiel Edlin and many others, including many well respected Georgia psychologists, have been work- ing on the program for well over a year and it promises to be something very special. FLR Inside This Issue 1. Do Not Let COBRA Bite You or Your Clients by Melissa Brown 1. Relocation of Custodial Parent: Standards and Burden of Proof State-By-State by Laura W. Morgan 2. Note from the Chair by Steve Steele 3. Editor’s Corner by Randall Kessler 8. Technology Update: The Paperless Office? by Randall Kessler 9. Ethical Dilemmas in Family Law by Jeanney M. Kutner 30. Case Law Update: Recent Georgia Decisions by Sylvia A. Martin and M. Debra Gold 34. YLD Establishes Family Law Committee by Jonathan Tuggle 35. From the Former Editor by Kurt Kegel 35. Past Chairs of the Family Law Section 36. Family Law Section Executive Committee

The Family Law Review 3 November 2005 COBRA Who Qualifies For COBRA Continued from page 1 Benefits? 2. The beneficiary must fall within a A Qualified Beneficiary is generally specific class of individuals to be con- defined as an individual covered under a sidered as a qualified beneficiary; and group health plan either as a covered 3. Certain events, defined by COBRA as employee, spouse of a covered employee, qualifying events, must occur before dependent child of a covered employee, or COBRA considers qualified beneficiar- any child born to, adopted by, or placed for ies eligible for its benefits. adoption with a covered employee during a period of COBRA continuation coverage. Which Plans Are Subject To Other qualified beneficiaries include cov- COBRA? ered employees who retired on or before Most group health plans are subject to the date of substantial elimination of the COBRA, although certain otherwise quali- group health plan coverage, such as a com- fied group health plans, such as small- pany becoming bankrupt. These individu- employer plans, church plans and govern- als’ spouses, surviving spouses or depend- mental plans, are exceptions to the rule. A ent children are also considered as quali- Group Health Plan is defined as “a plan fied beneficiaries. Other individuals can maintained by an employer or employee qualify as beneficiaries under less typical organization to provide health care to indi- situations, which are specifically defined in viduals who have an employment related IRC Section 54.4980B-3(a)(1)(c – f). connection to the employer or employee However, non-resident aliens, their spouses organization or to their families.” IRC Sec. and dependent children do not qualify as 54.4980B-2(a). Long-term care service plans beneficiaries, and otherwise qualified indi- and employer contributions to medical sav- viduals can lose their qualified status if ings accounts are not considered under they do not elect COBRA during an elec- COBRA’s definition of a group health plan. tion period. Plans subject to COBRA are those main- What Is a Qualifying Event? tained by an employer with twenty or A qualifying event includes any of the more employees on at least 50 percent of its following circumstances: typical business days during the preceding calendar year. To determine whether a (a) Death of the covered employee; company has 20 full-time employees, part- (b) Termination (other than by reason of time employees will count as a fraction gross misconduct), or reduction of toward the number of full-time workers hours of a covered employee’s employ- under COBRA. ment; The method is fairly simple. Take the (c) Divorce or legal separation of a cov- number of hours typically worked by a part- ered beneficiary from the covered time employee per day as the numerator employee spouse; and the number of hours a full-time employ- (d) Covered employee becoming enti- ee typically works in a day as the denomina- tled to Medicare benefits under Title tor. The resulting fraction is added to the XVIII of the Social Security Act; number of full-time employees. For example, assume a company employs 10 full-time (e) A dependent child’s ceasing to be a employees who work eight hours per day dependent child of the covered employ- and 20 part-time employees who work four ee under the plan; or hours per day: 4/8 = 1/2 so each part-time (f) A proceeding in bankruptcy under employee counts as one-half of a full-time Title 11 of the United States Code with employee. Therefore, the company’s 20 part- respect to an employer from whose time employees count as 10 full-time employment a covered employee employees so 10 + 10 = 20. Thus, the compa- retired at any time. ny’s group health plan is subject to COBRA’s Voluntary termination, strikes, lockouts, regulations. layoffs and involuntary discharge are also considered qualifying events, and the

The Family Law Review 4 November 2005 underlying reason the event happened is (1) Last day of the maximum coverage irrelevant unless gross misconduct caused period; the circumstances to occur. Neither the (2) First day qualified beneficiary’s pre- statute nor the regulations define gross mium payment is not timely made misconduct, but a number of court cases (there is a 30 day window of opportuni- have determined whether a certain set of ty to pay); facts qualifies as gross misconduct although each court’s standards can widely (3) Date when employer ceases to pro- vary. vide a group health plan to any other employee; One court found gross misconduct where there was a “substantial deviation from the (4) Date when the qualified beneficiary high standards and obligations of a mana- first becomes covered under any other gerial employee that would indicate that group health plan; or said employee cannot be entrusted with his (5) Date when the qualified beneficiary management duties without danger to the first becomes entitled to Medicare benefits. employer.”1 A schoolteacher who requested If the qualified beneficiary becomes dis- COBRA coverage was denied such cover- abled during the continuation of coverage age after being terminated from the posi- period, the continuation of coverage is tion for having become sexually involved extended to either 29 months or the end of with a student because the Court found the the maximum coverage period (i.e. 36 teacher’s actions rose to the level of gross months). In addition, continuation cover- misconduct.2 Where a flight attendant age can terminate if an event occurs during yelled racial epithets and threw an apple at this period that would cause the regular another employee in front of passengers, plan to terminate coverage for cause. If an the court held such behavior qualified as individual is not a qualified beneficiary but gross misconduct and the flight attendant receives health insurance coverage solely was denied COBRA benefits.3 because of a relationship to a qualified ben- COBRA considers divorces and legal sep- eficiary, this individual loses coverage if arations as qualifying events, which trigger the qualified beneficiary’s continuation of COBRA coverage for the non-employee coverage can be terminated. covered spouse. The continuation of health insurance cov- If your state does not recognize legal sep- erage periods are charted below, but in no arations (i.e. limited divorces or divorce a event does the period of coverage extend mensa et thoro) as a form of litigation, one beyond 36 months under COBRA5: should consider filing for an action similar to South Carolina’s separate maintenance Qualifying Period of Beneficiary action. Filing such an action is beneficial Event Coverage where a client has a serious medical condi- Employee, tion that makes it impossible for her to Termination Spouse, obtain COBRA’s limited period of coverage or Reduced 18 months 6 Dependent there after. Hours Child

How Long Does COBRA Last? Employee COBRA establishes minimum required entitled to periods of coverage.4 COBRA allows for up Medicare, to 18 months, 29 months or 36 months of Spouse or Divorce or Dependent Legal separa- 36 months continuation coverage depending upon the Child tion occur, or qualified beneficiary’s status and the nature Death of of the qualifying event. Except for an inter- Covered ruption of coverage in connection with a Employee waiver, COBRA coverage typically begins Loss of on the date of the qualifying event and Dependent Dependent 36 months ends not before the earliest of the following: Child Status

The Family Law Review 5 November 2005 insurance plan or at the time the plan COBRA considers divorces and legal becomes subject to COBRA or when a new separations as qualifying events, spouse is added. Notice may be provided by first class mail to the last known which trigger COBRA coverage for the address of the employee and spouse. non-employee covered spouse. The burden of notifying a qualified bene- ficiary following a qualifying event rests Determining the period of coverage is with employers, employees and plan sometimes tricky. For example, consider a administrators. An employer has 30 days to situation where a Husband terminates his notify the plan administrator following the employment (a qualifying event) and the death, termination or reduction of hours of family loses its health insurance? If Husband an employee. When an employee becomes properly and timely elects continuation of divorced or legally separated or a depend- coverage under COBRA, his coverage and ent is no longer qualified for health insur- the family’s coverage will only last 18 ance coverage because of his or her age, the months. However, if the Husband and Wife burden falls upon the employee to notify divorce or obtain a legal separation before the plan administrator, and such notice the 18 months continuation coverage runs, must be done within 60 days. Once the plan the divorce is then considered a second qual- administrator receives notice of the qualify- ifying event and extends the non-employee ing event, the plan administrator must noti- spouse’s (i.e. Wife’s) health insurance cover- fy the employee and all affected qualified age to 36 months beyond the date she initial- beneficiaries of their continuation rights ly began receiving COBRA coverage. The within 14 days of their receipt of the notice. employee spouse (i.e. Husband), however, is After the employee and/or qualified ben- not entitled to extend his COBRA coverage eficiaries receive notice of their continua- beyond the original 18 month period. tion rights, they have 60 days to decide How Much Does COBRA Cost? whether or not to elect COBRA’s continua- tion of health insurance coverage. COBRA is expensive, but generally, it costs less than individual coverage because What Happens If An Employer it is part of a group health plan, which usu- Fails To Comply With COBRA’S ally receives a discounted rate. The premi- Requirements? um, however, is generally more expensive than the other group health plan members’ What happens if during divorce litigation premium. The reason for the increased cost a Wife learns that her Husband’s company is the employer no longer contributes has not complied with COBRA’s require- funds toward the plan. ments to provide coverage to qualified ben- eficiaries after the occurrence of a qualified Under COBRA, the premium’s cost can- event or if the company has failed to prop- not exceed 102 percent of the regular group erly notify employees or other qualified health plan premium. If the participant beneficiaries of their COBRA rights? The does not make timely payment (within 30 Husband and his company are in big trou- days), the group health plan can terminate ble. Penalties include the imposition of an COBRA coverage. excise tax upon the employer (i.e. the A disabled qualified beneficiary’s Husband), the company and/or possibly the COBRA premium payment can differ and insurance carrier. The excise tax is $100 per depend on several factors not addressed by day for each day that notice was not pro- this article; however, the COBRA premium vided to a qualified beneficiary. In addition, cannot exceed 150 percent of the applicable failure to provide notice can cause the premium cost under any circumstances. employer to become liable for all medical expenses that otherwise would have been What Notice Is Required? covered by the group health insurance once Employers must give notice of COBRA COBRA continuation coverage should have rights to their employees and their employ- begun. Clearly, the liability could be finan- ees’ spouses when the employee first cially devastating, and an innocent Wife becomes covered by the group health should protect herself from any liability

The Family Law Review 6 November 2005 stemming from a husband’s company’s fail- 6. How many months did the company ure to comply with the federal regulation. employ full-time employees last year? How Do We Protect Our Divorce 7. How many months did the company Clients Regarding COBRA? employ part-time employees last year? 8. What period of time does the employ- As our society ages and medical costs er consider a normal workweek? skyrocket, health insurance becomes a more important factor in divorce cases 9. What are the name, address and especially when determining a client’s post- phone number of the plan administrator divorce financial needs. It can affect the of the employer’s health insurance plan? payment or receipt of alimony and the val- 10. What is the actual cost of the health uation of a marital asset such as the busi- insurance premium? ness discussed above. To determine its 11. What is the amount of the employ- effect upon your case, include questions er’s contribution to the cost of the health and requests in discovery for information insurance premium? related to health insurance benefits and actual plan language; potential COBRA 12. What are the costs of the COBRA benefits; health insurance needs and premium? options post-divorce; and where applica- 13. [If the opposing party runs the mari- ble, determine whether a company owned tal business.] Does the company’s group by the parties has properly complied with health insurance plan subject to COBRA regulations. Consider adding some COBRA? of the following requests to your discovery forms: 14. [If the opposing party runs the mari- tal business.] Has the company fully Requests for Production: complied with COBRA’s requirements? 1. Please provide a copy of your com- When a party must elect COBRA cover- pany’s Health Insurance Plan; age following a divorce or legal separation, 2. Please provide a copy of your com- assist the client, especially the non-employ- pany’s Employee Handbook; ee spouse, by drafting a letter to the plan administrator notifying the administrator 3. Please provide copies of all Health of the qualifying event, i.e. the date of the Insurance Plans offered by your divorce or date of legal separation. (See employer; and Exhibit A.) Otherwise, the client would 4. [If the opposing party runs the mari- have to rely upon their spouse to notify the tal business, inquire whether the health administrator and if the spouse does not insurance plan is subject to COBRA.] timely notify the administrator, the client Please provide all documents attesting might lose their right to COBRA coverage to the businesses compliance with due to the spouse’s untimely notification. COBRA’s regulations. The plan administrator must then timely notify the client of her election rights, and Interrogatories: inform the client ahead of time that she 1. How many full-time employees were only has 60 days to elect COBRA coverage employed by your employer last year? after the plan administrator contacts her. 2. How many hours a week did the full- Conclusion time employees work last year? When addressing COBRA issues in a fam- 3. How many full-time employees are ily court setting, remember the following: currently employed by your employer? a. COBRA is a federal regulation that 4. How many hours a week do full-time provides only temporary continuation employees at your company currently of group health insurance coverage; work? b. Such coverage is only available under 5. How many part-time employees does certain specific circumstances which your employer’s company employ, and what hours do they work? see COBRA on page 29

The Family Law Review 7 November 2005 Technology Update: The Paperless Office? By Randy Kessler

echnology affords us opportunities to remotely, you can access not only the docu- vastly improve our practice. In turn, ments your office has prepared but the Twe have time to do what we do best, entire file. In the future, you will not need to which is research, strategize and communi- bring your file to court since high-speed cate with our clients. One new develop- Internet access will be available in the court- ment that may be years down the road for rooms, and you will be able to access the most of us is the paperless office. complete file from a laptop. Additionally, My partner Marvin Solomiany and I when a case is closed, you may simply copy recently took steps to learn about the the entire file to a disk to store it, then give a paperless office by attending the American copy to your client. You may also charge a Bar Association’s Technology Show in fee for this since you will have by then Chicago and by visiting with local attorney expended a significant amount of money on John A. Beall in Jonesboro, Ga., who has the tools to make your office paperless. developed a paperless office. Mr. Beall was The disadvantages include, what we kind enough to demonstrate how his might perceive as, a tremendous cost. From paperless office works, and it is indeed the presentations I have observed it amazing. (Beware of any discovery dispute appears that the hardware will cost you might have with Mr. Beall for he will between $25,000 and $50,000. There may be have every document at his fingertips!) additional software that may be required in We are excited about this idea but it is order to minimize the memory usage on costly and time consuming. This particular your computer since the mere scanning of article will not describe the “how-tos” of documents uses up an inordinate amount creating a paperless office, but rather will of memory on your computer. discuss some of the benefits and disadvan- Another significant cost that most tages we have observed. First, a quick experts agree is necessary for a paperless description: the paperless office is what it office to be successful is that one must hire sounds like: an office where little or no a full-time employee to input every docu- paper is required. Every document the ment into the computer. Beyond that, the relating to a case in any way is fed into the documents must be inputted into the prop- computer system so that it may be viewed er place, properly coded and named so that on a computer screen or printed out at a they can be found when needed. moment’s notice. This includes attorney’s And finally, the most obvious disadvan- notes, documents sent by the other side, tage: the FEAR FACTOR. We are afraid of court orders, legal treatises and research change. I can think of nothing more traumat- relating to the case, as well as paper evi- ic than eliminating a paper file and forcing a dence such as deeds and titles. lawyer to trust that everything is somewhere Now, let’s look at the benefits and disad- within his or her computer. Yes, computers vantages of a paperless office. Some of the do crash, their memories fail, and data gets obvious benefits are the elimination or mini- lost. Of course there are remedies for this, malization of storage. Think of the cost sav- and safeguards including backups and alter- ings if you were to have no storage cost. native copies. The ultimate backup would be Second, think of the efficiency if you were to print out a copy of what you might need able to pull up any document in a case even in court. However, once you have confidence five years after the case is over, even filed- that your paperless office works, you will stamped court orders. Another benefit is not only be free of the need for paper, you that if you are away from your office and will also be free of the cost of copying, fax- you have the ability to access your office ing and storing. FLR

The Family Law Review 8 November 2005 Ethical Dilemmas in Family Law By Jeanney M. Kutner

ane and John were divorcing after 15 sentation to clients while avoiding the years and three children. Although types of harm illustrated in these stories, Jtheirs had been a traditional marriage family lawyers look to a document titled in which he spent long hours working to “Bounds of Advocacy,” a set of Standards provide for the family, and she stayed at of Conduct published by the American home to raise the children, he filed for cus- Academy of Matrimonial Lawyers (AAML) tody, alleging that she was an unfit mother. in 1991. The document can be found on the Jane confronted John in person to association’s Web site at demand an explanation for these pleadings www.aaml.org/bounds.htm. stating what they both knew to be totally The Standards set forth optimal ethical untrue. John admitted that while she might behavior for lawyers involved with family not be unfit, Jane denigrated and dispar- disputes, to promote “greater professional- aged him in front of the children, which ism, trust, fair dealing and concern for served to alienate the children from him. opposing parties and counsel, third per- He told her that he could do a better job as sons and the public.” For example, primary caretaker. As she gave in to most Standard 2.25 would apply to John’s of his demands during a lengthy and labo- lawyer: “An attorney should not contest rious series of negotiations and mediations, child custody or visitation for either finan- caring most about keeping custody of her cial leverage or vindictiveness.” For children, Jane was able to resolve the key lawyers whose clients demand to rage a financial issues with John. Months later, spurious custody fight, Standard 2.14 pro- when the case was finally called for trial, vides: “An attorney should advise the client his lawyer announced that John was aban- of the potential effect of the client’s conduct doning his custody claim and the case was on a custody dispute.” And the Comment finally over. following this standard advises: Meg and Doug were divorcing after 10 The lawyer must consider whether the years and two children. Their marriage had custody claim will be made in good faith. If been stormy, but when Meg was arrested not, the lawyer must advise the client of for Driving Under the Influence while the the harmful consequences of a meritless children were in the car with her, Doug custody claim to the client, the child, and filed for divorce and sought immediate the client’s spouse. If the client still custody of the children and exclusive use demands advice to build a spurious cus- of the marital residence. Doug alleged that tody case or to use a custody claim as a Meg was an alcoholic and needed to be in a bargaining chip or as a means of inflecting residential treatment center. Meg respond- revenge, the lawyer should withdraw. ed that Doug was the cause of her drinking John’s lawyer should surely have with- problem, as he had been abusing her for drawn once the facts and John’s intentions years. Before Doug ultimately was award- became clear. ed custody of the children, and Meg was required to seek treatment, the court held Standard 2.11 was written with Meg in numerous hearings on Meg’s claims for mind: “When the client’s decision-making temporary alimony and expanded visita- ability is affected by emotional problems, tion with the children, who adored her. substance abuse, or other impairment, an attorney should recommend counseling or These two stories are common in the treatment.” But clients such as Meg don’t family court where I serve as a judicial offi- always follow the lawyer’s advice. The cer. The family lawyers who represent a family lawyer representing Meg would Jane, John, Meg or Doug face special ethi- have the choice of documenting his or her cal dilemmas, as they have not only their attempts to advise her appropriately or client to consider, but also the destruction withdrawing from representing her. of a family unit. To provide ethical repre- see Ethics on page 34

The Family Law Review 9 November 2005 State Survey take into account all relevant factors, Continued from page 1 including those enumerated in paragraph (c) of subsection (2) of this section. The cate the child in accordance with the child’s party who is intending to relocate with the best interests. The burden of proving what child to a residence that substantially is in the child’s best interests is on the par- changes the geographical ties between the ent who is seeking to relocate the child. To child and the other party shall provide the the extent practicable the court shall also other party with written notice as soon as make appropriate arrangements to ensure practicable of his or her intent to relocate, the continuation of a meaningful relation- the location where the party intends to ship between the child and both parents. reside, the reason for the relocation, and a Ariz. Rev. Stat. § 25-408(G). proposed revised parenting time plan. A See Bloss v. Bloss, 147 Ariz. 524, 711 P.2d court hearing on any modification of par- 663 (App. Ct. Div. 2 1985). enting time due to an intent to relocate Arkansas shall be given a priority on the court’s docket. Colo. Rev. Stat. § 14-10-129(1)(a)(II). There is a presumption in favor of reloca- See In re Marriage of Ciesluk, 113 P.3d 135 tion for custodial parents with primary cus- (Colo. 2005). tody of children, with the burden being with the noncustodial parent to rebut the Connecticut relocation presumption, and thus the custo- Custodial parent seeking permission to dial parent no longer has the responsibility relocate bears the initial burden of demon- to prove a real advantage to herself or him- strating, by a preponderance of the evi- self and to the children in relocating. Blivin dence, that the relocation is for a legitimate v. Weber, 354 Ark. 483, 126 S.W.3d 351 (2003). purpose and the proposed location is rea- California sonable in light of that purpose; once the custodial parent has made such a prima The noncustodial parent bears the initial facie showing, the burden shifts to the non- burden of showing that the proposed relo- custodial parent to prove, by a preponder- cation of the children’s residence would ance of the evidence, that the relocation cause detriment to the children, requiring a would not be in the best interests of the reevaluation of the children’s custody. The child. Ireland v. Ireland, 246 Conn. 413, 717 likely impact of the proposed move on the A.2d 676 (1998). noncustodial parent’s relationship with the children is a relevant factor in determining Delaware whether the move would cause detriment Adopting Model Relocation Act, court to the children and, when considered in must weigh various factors to determine if light of all of the relevant factors, may be relocation is in the best interests of the sufficient to justify a change in custody. If child. Karen J.M. v. James W., 792 A.2d 1036 the noncustodial parent makes such an ini- (Del. Fam. Ct. 2002). tial showing of detriment, the court must perform the delicate and difficult task of Florida determining whether a change in custody No presumption shall arise in favor of or is in the best interests of the children. In re against a request to relocate when a pri- Marriage of La Musga, 32 Cal.4th 1072, 12 mary residential parent seeks to move the Cal. Rptr.3d 356, 88 P.3d 81 (2004). child and the move will materially affect Colorado the current schedule of contact and access with the secondary residential parent. In In those cases in which a party with making a determination as to whether the whom the child resides a majority of the primary residential parent may relocate time is seeking to relocate with the child to with a child, the court must consider the a residence that substantially changes the following factors: 1. Whether the move geographical ties between the child and the would be likely to improve the general other party, the court, in determining quality of life for both the residential par- whether the modification of parenting time ent and the child; 2. The extent to which is in the best interests of the child, shall

The Family Law Review 10 November 2005 visitation rights have been allowed and removing such child or children from exercised; Whether the primary residential Illinois to give reasonable security guaran- parent, once out of the jurisdiction, will be teeing the return of such children. (b) likely to comply with any substitute visita- Before a minor child is temporarily tion arrangements; 4. Whether the substi- removed from Illinois, the parent responsi- tute visitation will be adequate to foster a ble for the removal shall inform the other continuing meaningful relationship parent, or the other parent’s attorney, of the between the child and the secondary resi- address and telephone number where the dential parent; 5. Whether the cost of trans- child may be reached during the period of portation is financially affordable by one or temporary removal, and the date on which both parties; 6. Whether the move is in the the child shall return to Illinois. The state best interests of the child. Fla. Stat. Ann. § of Illinois retains jurisdiction when the 61.13(2)(d)(3). minor child is absent from the state pur- See Buonavolonta v. Buonavolonta, 846 suant to this subsection. 750 ILCS 5/609. So.2d 649 (Fla. 2d DCA 2003). See In re Marriage of Eckert, 119 Ill.2d 316, 116 Ill.Dec. 220, 518 N.E.2d 1041 (1988); In Georgia re Marriage of Smith, 172 Ill.2d 312, 321, 216 Analysis must be based on the best inter- Ill.Dec. 652, 665 N.E.2d 1209 (1996). ests of the child. This analysis forbids the presumption that a relocating custodial Indiana parent will always lose custody and, con- (a) If an individual who has been award- versely, forbids any presumption in favor ed custody of a child under this chapter of relocation. Bodne v. Bodne, 277 Ga. 445, intends to move to a residence: (1) other 588 S.E.2d 728 (2003). than a residence specified in the custody order; and Idaho (2) that is outside Indiana or at least one In Idaho, the best interests of the children hundred (100) miles from the individual’s is always the paramount concern. Therefore, county of residence; in any judicial determination regarding the custody of children, including where they the individual must file a notice of the reside, the best interests of the child should intent to move with the clerk of the court be the standard and primary consideration. that issued the custody order and send a In addition, Idaho favors the active partici- copy of the notice to a parent who was not pation of both parents in raising children awarded custody and who has been grant- after divorce, which policy is reflected in ed parenting time rights under IC 31-17-4 I.C. § 32-717B supporting joint custody. For (or IC 31-1-11.5-24 before its repeal). these reasons, in Idaho, the moving parent (b) Upon request of either party, the has the burden of proving relocation would court shall set the matter for a hearing for be in the best interests of the child before the purposes of reviewing and modifying, moving in violation of a previous custody if appropriate, the custody, parenting time, arrangement. Roberts v. Roberts, 138 Idaho and support orders. The court shall take 401, 64 P.3d 327 (2003). into account the following in determining whether to modify the custody, parenting Illinois time, and support orders: Leave to Remove Children. (a) The court (1) The distance involved in the proposed may grant leave, before or after judgment, change of residence. to any party having custody of any minor child or children to remove such child or (2) The hardship and expense involved children from Illinois whenever such for noncustodial parents to exercise parent- approval is in the best interests of such ing time rights. (c) Except in cases of child or children. The burden of proving extreme hardship, the court may not award that such removal is in the best interests of attorney’s fees. Ind. Code § 31-17-2-23. such child or children is on the party seek- Whether move out of state by parent ing the removal. When such removal is with joint legal custody and primary physi- permitted, the court may require the party cal custody would be sufficient to satisfy

The Family Law Review 11 November 2005 standard of proof required for modification the other parent by reason of the failure to of child custody orders depends upon give notice. facts. Although move out of state by parent (c) A change of the residence or the with joint legal custody and primary physi- removal of a child as described in subsec- cal custody is not per se substantial change tion (a) may be considered a material of circumstances such as to make that par- change of circumstances which justifies ent’s continuing custody unreasonable, this modification of a prior order of legal cus- does not mean that circumstances inherent tody, residency, child support or parenting in such move are always insufficient as a time. In determining any motion seeking a matter of law to warrant modifying child modification of a prior order based on custody. Lamb v. Wenning, 600 N.E.2d 96 change of residence or removal as described (Ind. 1992). in (a), the court shall consider all factors the court deems appropriate including, but not Iowa limited to: (1) The effect of the move on the If a parent awarded joint legal custody best interests of the child; (2) the effect of and physical care or sole legal custody is the move on any party having rights grant- relocating the residence of the minor child ed pursuant to K.S.A. 60-1610, and amend- to a location which is one hundred fifty ments thereto; and (3) the increased cost the miles or more from the residence of the move will impose on any party seeking to minor child at the time that custody was exercise rights granted under K.S.A. 60- awarded, the court may consider the relo- 1610, and amendments thereto. cation a substantial change in circum- (d) A parent entitled to the legal custody stances. If the court determines that the or residency of a child pursuant to K.S.A. relocation is a substantial change in cir- 60-1610 and amendments thereto shall not cumstances, the court shall modify the cus- be required to give the notice required by tody order to, at a minimum, preserve, as this section to the other parent when the nearly as possible, the existing relationship other parent has been convicted of any between the minor child and the nonrelo- crime specified in article 34, 35 or 36 of cating parent. If modified, the order may chapter 21 of the Kansas Statutes include a provision for extended visitation Annotated in which the child is the victim during summer vacations and school of such crime. Kan. Stat. § 60-1620. breaks and scheduled telephone contact between the nonrelocating parent and the See In re Marriage of Whipp, 265 Kan. 500, minor child. Iowa Code 598.21(8A). 962 P.2d 1058 (1998). See In re Marriage of Thielges, 623 N.W.2d Kentucky 232 (Iowa Ct. App. 2000). A non-primary residential custodian par- Kansas ent who objects to the primary residential custodian’s relocation with the children can (a) Except as provided in subsection (d), only prevent the relocation by being named a parent entitled to legal custody or resi- the sole or primary residential custodian, dency of or parenting time with a child and to accomplish this re-designation pursuant to K.S.A. 60-1610 and amend- would require a modification of the prior ments thereto shall give written notice to custody award; he or she must therefore the other parent not less than 30 days prior show that the child’s present environment to: (1) Changing the residence of the child; endangers seriously his physical, mental, or (2) removing the child from this state for moral, or emotional health, and the harm a period of time exceeding 90 days. Such likely to be caused by a change of environ- notice shall be sent by restricted mail, ment is outweighed by its advantages. return receipt requested, to the last known address of the other parent. Fenwick v. Fenwick, 114 S.W.3d 767 (Ky. 2003). (b) Failure to give notice as required by Louisiana subsection (a) is an indirect civil contempt A. In reaching its decision regarding a punishable as provided by law. In addition, proposed relocation, the court shall consid- the court may assess, against the parent er the following factors: required to give notice, reasonable attorney fees and any other expenses incurred by (1) The nature, quality, extent of involve-

The Family Law Review 12 November 2005 ment, and duration of the child’s rela- (12) Any other factors affecting the best tionship with the parent proposing to interest of the child. relocate and with the nonrelocating par- B. The court may not consider whether ent, siblings, and other significant per- or not the person seeking relocation of the sons in the child’s life. child will relocate without the child if relo- (2) The age, developmental stage, needs of cation is denied or whether or not the per- the child, and the likely impact the relo- son opposing relocation will also relocate if cation will have on the child’s physical, relocation is allowed. La. Rev. Stat. educational, and emotional develop- 9:355.12. ment, taking into consideration any spe- The relocating parent has the burden of cial needs of the child. proof that the proposed relocation is made (3) The feasibility of preserving a good in good faith and is in the best interest of relationship between the nonrelocating the child. In determining the child’s best parent and the child through suitable interest, the court shall consider the bene- visitation arrangements, considering the fits which the child will derive either logistics and financial circumstances of directly or indirectly from an enhancement the parties. in the relocating parent’s general quality of (4) The child’s preference, taking into con- life. La. Rev. Stat. 9:355.13. sideration the age and maturity of the Maine child. 2. Change in circumstances. In reviewing (5) Whether there is an established pattern a motion for modification or termination of conduct of the parent seeking the filed under chapter 59 or section 1653 or relocation, either to promote or thwart 1655, the following constitute a substantial the relationship of the child and the change in circumstances: nonrelocating party. A. The relocation, or intended relocation, (6) Whether the relocation of the child will of a child resident in this state to another enhance the general quality of life for state by a parent, when the other parent is both the custodial parent seeking the a resident of this state and there exists an relocation and the child, including but award of shared or allocated parental not limited to financial or emotional rights and responsibilities concerning the benefit or educational opportunity. child; (7) The reasons of each parent for seeking A-1. The relocation, or intended reloca- or opposing the relocation. tion, of a child that will disrupt the parent- child contact between the child and the (8) The current employment and economic parent who is not relocating, if there exists circumstances of each parent and an award of shared or allocated parental whether or not the proposed relocation rights and responsibilities concerning the is necessary to improve the circum- child. Relocating the child more than 60 stances of the parent seeking relocation miles from the residence of the parent who of the child. is relocating or more than 60 miles from (9) The extent to which the objecting parent the residence of the parent who is not relo- has fulfilled his or her financial obliga- cating is presumed to disrupt the parent- tions to the parent seeking relocation, child contact between the child and the including child support, spousal sup- parent who is not relocating; port, and community property obliga- A-2. The receipt of notice of the intended tions. relocation of the child as required under (10) The feasibility of a relocation by the section 1653, subsection 14; or . . . [.] Me. objecting parent. Rev. Stat. § 1657. (11) Any history of substance abuse or vio- A relocation is a substantial change in cir- lence by either parent, including a con- cumstances. With such a change established sideration of the severity of such con- as a matter of law, the issue for the court is duct and the failure or success of any what modification of the preexisting cus- attempts at rehabilitation. tody order is in the child’s best interest. Fraser v. Boyer, 722 A.2d 354 (Me. 1998).

The Family Law Review 13 November 2005 Maryland court, after complying with subsection (4), permits, the residence change. This section Changes brought about by relocation of does not apply if the order governing the parent may, in given case, be sufficient to child’s custody grants sole legal custody to justify change in custody; result depends 1 of the child’s parents. upon circumstances of each case. Domingues v. Johnson, 23 Md. 486, 593 A.2d 1133 (1991). (3) This section does not apply if, at the time of the commencement of the action in Massachusetts which the custody order is issued, the A minor child of divorced parents who is child’s two residences were more than 100 a native of or has resided five years within miles apart. This section does not apply if this commonwealth and over whose cus- the legal residence change results in the tody and maintenance a probate court has child’s two legal residences being closer to jurisdiction shall not, if of suitable age to each other than before the change. signify his consent, be removed out of this (4) Before permitting a legal residence commonwealth without such consent, or, if change otherwise restricted by subsection under that age, without the consent of both (1), the court shall consider each of the fol- parents, unless the court upon cause lowing factors, with the child as the pri- shown otherwise orders. The court, upon mary focus in the court’s deliberations: application of any person in behalf of such (a) Whether the legal residence change has child, may require security and issue writs the capacity to improve the quality of and processes to effect the purposes of this life for both the child and the relocating and the two preceding sections. Mass. Gen. parent. L. c. 208, § 30. (b) The degree to which each parent has Although best interests of children complied with, and utilized his or her always remain paramount concern on time under, a court order governing request for removal of children from parenting time with the child, and Commonwealth, because best interests of whether the parent’s plan to change the children are so interwoven with well-being child’s legal residence is inspired by that of custodial parent, determination of chil- parent’s desire to defeat or frustrate the dren’s best interest requires that custodial parenting time schedule. parent be taken into account. If custodial parent establishes good, sincere reason for (c) The degree to which the court is satis- wanting to remove to another jurisdiction, fied that, if the court permits the legal none of the relevant factors becomes con- residence change, it is possible to order trolling in deciding best interests of child, a modification of the parenting time but rather they must be considered collec- schedule and other arrangements gov- tively. Rosenthal v. Maney, 51 Mass. App. Ct. erning the child’s schedule in a manner 257, 745 N.E.2d 350 (2001). that can provide an adequate basis for preserving and fostering the parental Michigan relationship between the child and each Sec. 11. (1) A child whose parental cus- parent; and whether each parent is like- tody is governed by court order has, for the ly to comply with the modification. purposes of this section, a legal residence (d) The extent to which the parent oppos- with each parent. Except as otherwise pro- ing the legal residence change is moti- vided in this section, a parent of a child vated by a desire to secure a financial whose custody is governed by court order advantage with respect to a support shall not change a legal residence of the obligation. child to a location that is more than 100 (e) Domestic violence, regardless of miles from the child’s legal residence at the whether the violence was directed time of the commencement of the action in against or witnessed by the child. which the order is issued. (5) Each order determining or modifying (2) A parent’s change of a child’s legal custody or parenting time of a child shall residence is not restricted by subsection (1) include a provision stating the parent’s if the other parent consents to, or if the agreement as to how a change in either of

The Family Law Review 14 November 2005 the child’s legal residences will be handled. of a child for a period of ninety days or If such a provision is included in the order more, but does not include a temporary and a child’s legal residence change is done absence from the principal residence. in compliance with that provision, this sec- 2. Notice of a proposed relocation of the tion does not apply. If the parents do not residence of the child, or any party entitled agree on such a provision, the court shall to custody or visitation of the child, shall include in the order the following provi- be given in writing by certified mail, return sion: “A parent whose custody or parenting receipt requested, to any party with cus- time of a child is governed by this order tody or visitation rights. Absent exigent cir- shall not change the legal residence of the cumstances as determined by a court with child except in compliance with section 11 jurisdiction, written notice shall be provid- of the “Child Custody Act of 1970”, 1970 ed at least sixty days in advance of the pro- PA 91, MCL 722.31.”. posed relocation. The notice of the pro- (6) If this section applies to a change of a posed relocation shall include the follow- child’s legal residence and the parent seek- ing information: ing to change that legal residence needs to (1) The intended new residence, including seek a safe location from the threat of the specific address and mailing domestic violence, the parent may move to address, if known, and if not known, such a location with the child until the the city; court makes a determination under this section. Mich. Comp. Laws Ann. § 722.31. (2) The home telephone number of the new residence, if known; See Grew v. Knox, 265 Mich. App. 333, 694 N.W.2d 772 (2005). (3) The date of the intended move or pro- posed relocation; Minnesota (4) A brief statement of the specific reasons When a custodial parent petitions the for the proposed relocation of a child, if court for permission to remove the resi- applicable; and dence of a child to another state, the court (5) A proposal for a revised schedule of presumes that removal with the parent will custody or visitation with the child, if be in the best interests of the child and will applicable. grant permission to remove without an evi- dentiary hearing unless the party opposing 3. A party required to give notice of a the motion for removal makes a prima proposed relocation pursuant to subsection facie showing against removal. Once grant- 2 of this section has a continuing duty to ed a hearing, the noncustodial parent must provide a change in or addition to the prove by a preponderance of the evidence information required by this section as that removal is not in the best interests of soon as such information becomes known. the child. Auge v. Auge, 334 N.W.2d 393, 399 4. In exceptional circumstances where the (Minn.1983); see also Gordon v. Gordon, 339 court makes a finding that the health or N.W.2d 269, 271 (Minn.1983) (extending the safety of any adult or child would be Auge presumption to cases of joint cus- unreasonably placed at risk by the disclo- tody). sure of the required identifying informa- Mississippi tion concerning a proposed relocation of the child, the court may order that: Move to another state which effectively (1) The specific residence address and tele- curtails non-custodial parent’s visitation phone number of the child, parent or rights is not sufficient to warrant change in person, and other identifying informa- custody. Court must find an adverse effect tion shall not be disclosed in the plead- on the child. Spain v. Holland, 483 So.2d 318, ings, notice, other documents filed in 321 (Miss. 1986). the proceeding or the final order except Missouri for an in camera disclosure; 1. For purposes of this section and sec- (2) The notice requirements provided by tion 452.375, “relocate” or “relocation” this section shall be waived to the extent means a change in the principal residence necessary to protect the health or safety

The Family Law Review 15 November 2005 of a child or any adult; or posed relocation is made in good faith and (3) Any other remedial action the court is in the best interest of the child. considers necessary to facilitate the 10. If relocation is permitted: legitimate needs of the parties and the (1) The court shall order contact with the best interest of the child. nonrelocating party including custody 5. The court shall consider a failure to or visitation and telephone access suffi- provide notice of a proposed relocation of cient to assure that the child has fre- a child as: quent, continuing and meaningful con- (1) A factor in determining whether cus- tact with the nonrelocating party unless tody and visitation should be modified; the child’s best interest warrants other- wise; and (2) A basis for ordering the return of the child if the relocation occurs without (2) The court shall specify how the trans- notice; and portation costs will be allocated between the parties and adjust the child (3) Sufficient cause to order the party seek- support, as appropriate, considering the ing to relocate the child to pay reason- costs of transportation. able expenses and attorneys fees incurred by the party objecting to the 11. After Aug. 28, 1998, every court order relocation. establishing or modifying custody or visi- tation shall include the following language: 6. If the parties agree to a revised sched- “Absent exigent circumstances as deter- ule of custody and visitation for the child, mined by a court with jurisdiction, you, as which includes a parenting plan, they may a party to this action, are ordered to notify, submit the terms of such agreement to the in writing by certified mail, return receipt court with a written affidavit signed by all requested, and at least sixty days prior to parties with custody or visitation assenting the proposed relocation, each party to this to the terms of the agreement, and the action of any proposed relocation of the court may order the revised parenting plan principal residence of the child, including and applicable visitation schedule without the following information: a hearing. (1) The intended new residence, including 7. The residence of the child may be relo- the specific address and mailing cated 60 days after providing notice, as address, if known, and if not known, required by this section, unless a parent the city; files a motion seeking an order to prevent the relocation within thirty days after (2) The home telephone number of the new receipt of such notice. Such motion shall be residence, if known; accompanied by an affidavit setting forth (3) The date of the intended move or pro- the specific factual basis supporting a pro- posed relocation; hibition of the relocation. The person seek- (4) A brief statement of the specific reasons ing relocation shall file a response to the for the proposed relocation of the child; motion within fourteen days, unless and extended by the court for good cause, and include a counter-affidavit setting forth the (5) A proposal for a revised schedule of facts in support of the relocation as well as custody or visitation with the child. a proposed revised parenting plan for the Your obligation to provide this informa- child. tion to each party continues as long as you 8. If relocation of the child is proposed, a or any other party by virtue of this order is third party entitled by court order to legal entitled to custody of a child covered by custody of or visitation with a child and this order. Your failure to obey the order of who is not a parent may file a cause of this court regarding the proposed reloca- action to obtain a revised schedule of legal tion may result in further litigation to custody or visitation, but shall not prevent enforce such order, including contempt of a relocation. court. In addition, your failure to notify a party of a relocation of the child may be 9. The party seeking to relocate shall considered in a proceeding to modify cus- have the burden of proving that the pro-

The Family Law Review 16 November 2005 tody or visitation with the child. leaving the state. After clearing that thresh- Reasonable costs and attorney fees may be old, the custodial parent must next demon- assessed against you if you fail to give the strate that it is in the child’s best interests required notice.” to continue living with him or her. Under 12. Violation of the provisions of this sec- Nebraska law, the burden has been placed tion or a court order under this section on the custodial parent to satisfy this test. may be deemed a change of circumstance Tremain v. Tremain, 264 Neb. 328, 646 under section 452.410, allowing the court to N.W.2d 661 (2002). modify the prior custody decree. In addi- Nevada tion, the court may utilize any and all pow- ers relating to contempt conferred on it by If custody has been established and the law or rule of the Missouri supreme court. custodial parent intends to move his resi- dence to a place outside of this state and to 13. Any party who objects in good faith take the child with him, he must, as soon to the relocation of a child’s principal resi- as possible and before the planned move, dence shall not be ordered to pay the costs attempt to obtain the written consent of the and attorney’s fees of the party seeking to noncustodial parent to move the child from relocate. Mo. Stat. Ann. § 452.377. this state. If the noncustodial parent refuses See Stowe v. Spence, 41 S.W.3d 468 (Mo. to give that consent, the custodial parent 2001) (on a motion to relocate children, a shall, before he leaves this state with the court is required to determine that a pro- child, petition the court for permission to posed relocation: (1) is in the best interests move the child. The failure of a parent to of the child, (2) is made in good faith, and comply with the provisions of this section (3) if ordered, complies with statutory may be considered as a factor if a change of requirements). custody is requested by the noncustodial parent. Montana See Flynn v. Flynn, 92 P.3d 1224 (Nev. (1) A parent who intends to change resi- 2004). dence shall, unless precluded under 40-4- 234, provide written notice to the other New Hampshire parent. I. This section shall apply to relocation of (2) If a parent’s change in residence will the principal residence of a child if the significantly affect the child’s contact with existing custody order or other enforceable the other parent, notice must be served agreement between the parties does not personally or given by certified mail not expressly govern the relocation issue. This less than 30 days before the proposed section shall not apply if the relocation change in residence and must include a results in the child moving closer to the proposed revised residential schedule. non-custodial parent or to any location Proof of service must be filed with the within the child’s current school district. court that adopted the parenting plan. II. The custodial parent, prior to relocat- Failure of the parent who receives notice to ing, shall provide reasonable notice to the respond to the written notice or to seek non-custodial parent. For purposes of this amendment of the residential schedule section, 60 days notice shall be presumed pursuant to 40-4-219 within the 30-day to be reasonable unless other factors are period constitutes acceptance of the pro- found to be present. posed revised residential schedule. Mont. Code Ann. § 40-4-217. III. At the request of either the custodial or non-custodial parent, the court shall See In re Marriage of Cole, 224 Mont. 207, hold a hearing on the relocation issue. 729 P.2d 1276 (1986). IV. The custodial parent seeking permis- Nebraska sion to relocate bears the initial burden of In order to prevail on a motion to remove demonstrating, by a preponderance of the a minor child to another jurisdiction, the evidence, that: custodial parent must first satisfy the court (a) The relocation is for a legitimate pur- that he or she has a legitimate reason for pose; and

The Family Law Review 17 November 2005 (b) The proposed location is reasonable in ing the move, the quality of the relation- light of that purpose. ships between the child and the custodial V. If the burden of proof established in and noncustodial parents, the impact of the paragraph IV is met, the burden shifts to move on the quantity and quality of the the non-custodial parent to prove, by a pre- child’s future contact with the noncustodial ponderance of the evidence, that the pro- parent, the degree to which the custodial posed relocation is not in the best interest parent’s and child’s life may be enhanced of the child. economically, emotionally and educational- ly by the move, and the feasibility of pre- VI. If the court has issued a temporary serving the relationship between the non- order authorizing temporary relocation, the custodial parent and child through suitable court shall not give undue weight to that visitation arrangements. Matter of Tropea v. temporary relocation as a factor in reaching Tropea, 87 N.Y.2d 727, 739, 642 N.Y.S.2d 575, its final decision. 665 N.E.2d 145 (1996). The petitioner bears VII. The court, in reaching its final deci- the burden of establishing, by a preponder- sion, shall not consider whether the custodial ance of the evidence, that the move is in parent seeking to relocate has declared that the child’s best interest. Matter of Groover v. he or she will not relocate if relocation of the Potter, 17 A.D.3d 718, 792 N.Y.S.2d 693 (3 child is denied. N.H. Rev. Stat. § 458:23-a. Dep’t 2005). New Jersey North Carolina When the Superior Court has jurisdiction Where a parent changes his residence, over the custody and maintenance of the the effect on the welfare of the child must minor children of parents divorced, sepa- be shown in order for the court to modify a rated or living separate, and such children custody decree based on change of circum- are natives of this state, or have resided five stance. In evaluating the best interests of a years within its limits, they shall not be child in determining custody in the case of removed out of its jurisdiction against their a proposed relocation of one parent, the own consent, if of suitable age to signify the trial court may appropriately consider sev- same, nor while under that age without the eral factors including: the advantages of consent of both parents, unless the court, the relocation in terms of its capacity to upon cause shown, shall otherwise order. improve the life of the child; the motives of The court, upon application of any person the custodial parent in seeking the move; in behalf of such minors, may require such the likelihood that the custodial parent will security and issue such writs and processes comply with visitation orders when he or as shall be deemed proper to effect the pur- she is no longer subject to the jurisdiction poses of this section. N.J. Stat. Ann. § 9:2-2. of the courts of North Carolina; the integri- ty of the noncustodial parent in resisting See Baures v. Lewis, 167 N.J. 91, 770 A.2d the relocation; and the likelihood that a 214 (2001). realistic visitation schedule can be New Mexico arranged which will preserve and foster the parental relationship with the noncus- Sole custodian seeking to relocate with todial parent. Carlton v. Carlton, 145 N.C. child is entitled to presumption that move App. 252, 549 S.E.2d 916, reversed other is in best interest of child, and burden is on grounds 354 N.C. 561, 557 S.E.2d 529, cer- noncustodial parent to show that move is tiorari denied 536 U.S. 944 (2001). against those interests or motivated by bad faith on part of custodial parent. Jaramillo v. North Dakota Jaramillo, 113 N.M. 57, 823 P.2d 299 (1991). A parent entitled to the custody of a New York child may not change the residence of the child to another state except upon order of When reviewing a custodial parent’s the court or with the consent of the noncus- request to relocate, the court’s primary todial parent, if the noncustodial parent focus must be on the best interests of the has been given visitation rights by the child. The factors to be considered include: decree. A court order is not required if the each parent’s reasons for seeking or oppos- noncustodial parent:

The Family Law Review 18 November 2005 1. Has not exercised visitation rights for a If the court determines that the parent period of one year; or who is granted the parenting time rights 2. Has moved to another state and is has been convicted of or pleaded guilty to more than fifty miles [80.47 kilometers] a violation of section 2919.25 of the Revised from the residence of the custodial parent. Code involving a victim who at the time of the commission of the offense was a mem- See Stout v. Stout, 560 N.W.2d 903 (N.D. ber of the family or household that is the 1997). subject of the proceeding, has been convict- Ohio ed of or pleaded guilty to any other offense involving a victim who at the time of the (G)(1) If the residential parent intends to commission of the offense was a member move to a residence other than the resi- of the family or household that is the sub- dence specified in the parenting time order ject of the proceeding and caused physical or decree of the court, the parent shall file a harm to the victim in the commission of notice of intent to relocate with the court the offense, or has been determined to be that issued the order or decree. Except as the perpetrator of the abusive act that is the provided in divisions (G)(2), (3), and (4) of basis of an adjudication that a child is an this section, the court shall send a copy of abused child, it shall issue an order stating the notice to the parent who is not the resi- that that parent will not be given a copy of dential parent. Upon receipt of the notice, any notice of relocation that is filed with the court, on its own motion or the motion the court pursuant to division (G)(1) of this of the parent who is not the residential par- section unless the court determines that it ent, may schedule a hearing with notice to is in the best interest of the children to give both parents to determine whether it is in that parent a copy of the notice of reloca- the best interest of the child to revise the tion, issues an order stating that that parent parenting time schedule for the child. will be given a copy of any notice of reloca- (2) When a court grants parenting time tion filed pursuant to division (G)(1) of this rights to a parent who is not the residential section, and issues specific written findings parent, the court shall determine whether of fact in support of its determination. that parent has been convicted of or plead- (3) If a court, prior to April 11, 1991, ed guilty to a violation of section 2919.25 of issued an order granting parenting time the Revised Code involving a victim who rights to a parent who is not the residential at the time of the commission of the offense parent and did not require the residential was a member of the family or household parent in that order to give the parent who that is the subject of the proceeding, has is granted the parenting time rights notice been convicted of or pleaded guilty to any of any change of address and if the resi- other offense involving a victim who at the dential parent files a notice of relocation time of the commission of the offense was a pursuant to division (G)(1) of this section, member of the family or household that is the court shall determine if the parent who the subject of the proceeding and caused is granted the parenting time rights has physical harm to the victim in the commis- been convicted of or pleaded guilty to a sion of the offense, or has been determined violation of section 2919.25 of the Revised to be the perpetrator of the abusive act that Code involving a victim who at the time of is the basis of an adjudication that a child is the commission of the offense was a mem- an abused child. If the court determines ber of the family or household that is the that that parent has not been so convicted subject of the proceeding, has been convict- and has not been determined to be the per- ed of or pleaded guilty to any other offense petrator of an abusive act that is the basis involving a victim who at the time of the of a child abuse adjudication, the court commission of the offense was a member shall issue an order stating that a copy of of the family or household that is the sub- any notice of relocation that is filed with ject of the proceeding and caused physical the court pursuant to division (G)(1) of this harm to the victim in the commission of section will be sent to the parent who is the offense, or has been determined to be given the parenting time rights in accor- the perpetrator of the abusive act that is the dance with division (G)(1) of this section. basis of an adjudication that a child is an

The Family Law Review 19 November 2005 abused child. If the court determines that notice because the parent with parenting the parent who is granted the parenting time rights has been convicted of or plead- time rights has not been so convicted and ed guilty to a violation of section 2919.25 of has not been determined to be the perpe- the Revised Code involving a victim who trator of an abusive act that is the basis of a at the time of the commission of the offense child abuse adjudication, the court shall was a member of the family or household issue an order stating that a copy of any that is the subject of the proceeding, has notice of relocation that is filed with the been convicted of or pleaded guilty to any court pursuant to division (G)(1) of this other offense involving a victim who at the section will be sent to the parent who is time of the commission of the offense was a granted parenting time rights in accor- member of the family or household that is dance with division (G)(1) of this section. the subject of the proceeding and caused If the court determines that the parent physical harm to the victim in the commis- who is granted the parenting time rights sion of the offense, or has been determined has been convicted of or pleaded guilty to to be the perpetrator of the abusive act that a violation of section 2919.25 of the Revised is the basis of an adjudication that a child is Code involving a victim who at the time of an abused child, the residential parent may the commission of the offense was a mem- file a motion with the court requesting that ber of the family or household that is the the parent who is granted the parenting subject of the proceeding, has been convict- time rights not receive a copy of any notice ed of or pleaded guilty to any other offense of relocation. Upon the filing of the motion, involving a victim who at the time of the the court shall schedule a hearing on the commission of the offense was a member motion and give both parents notice of the of the family or household that is the sub- date, time, and location of the hearing. If ject of the proceeding and caused physical the court determines that the parent who is harm to the victim in the commission of granted the parenting time rights has been the offense, or has been determined to be so convicted or has been determined to be the perpetrator of the abusive act that is the the perpetrator of an abusive act that is the basis of an adjudication that a child is an basis of a child abuse adjudication, the abused child, it shall issue an order stating court shall issue an order stating that the that that parent will not be given a copy of parent who is granted the parenting time any notice of relocation that is filed with rights will not be given a copy of any the court pursuant to division (G)(1) of this notice of relocation that is filed with the section unless the court determines that it court pursuant to division (G)(1) of this is in the best interest of the children to give section or that the residential parent is no that parent a copy of the notice of reloca- longer required to give that parent a copy tion, issues an order stating that that parent of any notice of relocation unless the court will be given a copy of any notice of reloca- determines that it is in the best interest of tion filed pursuant to division (G)(1) of this the children to give that parent a copy of section, and issues specific written findings the notice of relocation, issues an order of fact in support of its determination. stating that that parent will be given a copy of any notice of relocation filed pursuant to (4) If a parent who is granted parenting division (G)(1) of this section, and issues time rights pursuant to this section or any specific written findings of fact in support other section of the Revised Code is of its determination. If it does not so find, it authorized by an order issued pursuant to shall dismiss the motion. Ohio Rev. Code § this section or any other court order to 3109.051. receive a copy of any notice of relocation that is filed pursuant to division (G)(1) of See Patton v. Patton, 141 Ohio App.3d 691, this section or pursuant to court order, if 753 N.E.2d 225 (3 Dist. 2001); Rohrbaugh v. the residential parent intends to move to a Rohrbaugh, 136 Ohio App.3d 599, 737 residence other than the residence address N.E.2d 551 (7 Dist. 2000). specified in the parenting time order, and if Oklahoma the residential parent does not want the parent who is granted the parenting time A parent entitled to the custody of a rights to receive a copy of the relocation child has a right to change his residence,

The Family Law Review 20 November 2005 subject to the power of the district court to seeking the relocation, including, but restrain a removal which would prejudice not limited to, economic and emotional the rights or welfare of the child. Okla. benefits, and educational opportunities. Stat. Ann. tit. 10, § 19. (3) The probable impact that the relocation See Casey v. Casey, 58 P.3d 763 (Okla. 2002). will have on the child’s physical, educa- tional, and emotional development. Any Oregon special needs of the child should also be The inquiry of the court focuses on the taken into account in considering this best interest of the child. If maintaining a factor. close geographic relationship with both (4) The feasibility of preserving the rela- parents were controlling, no primary par- tionship between the non-relocating ent would be allowed to move away over parent and child through suitable visita- the objection of the other parent without tion arrangements, considering the losing custody of the child. Matter of logistics and financial circumstances of Marriage of Duckett, 137 Or. App. 446, 905 the parties. P.2d 1170 (1995). (5) The existence of extended family or Pennsylvania other support systems available to the First the court must consider the child in both locations. prospective benefits of the move, consider- (6) Each parent’s reasons for seeking or ing non-economic as well as economic fac- opposing the relocation. tors, to determine if the move is likely to (7) In cases of international relocation, the improve substantially the quality of life for question of whether the country to the custodial parent and the child. The cus- which the child is to be relocated is a todial parent bears the burden of proof signatory to the Hague Convention on with regard to this first Second, the court the Civil Aspects of International Child must consider the motives of both parents. Abduction will be an important consid- The relevant standard for this prong with eration. regard to the custodial parent is that the move must not be motivated by a desire to (8) To the extent that they may be relevant thwart visitation by and a relationship with to a relocation inquiry, the factors set the non-custodial parent. One aspect to this forth in Pettinato v. Pettinato, 582 A.2d determination is whether the custodial par- 909, 913-14 (R.I.1990) are considered. ent will cooperate with visitation arrange- Dupre v. Dupre, 857 A.2d 242 (R.I. 2004). ments with the non-custodial parent. South Carolina Third, the court must consider the avail- ability of realistic, substitute visitation Other states have provided criteria to arrangements between the child and the guide a court’s decision. We do not endorse non-custodial parent. Gruber v. Gruber, 400 or specifically approve any of these factors Pa. Super. 174, 583 A.2d 434 (1990). for consideration, but merely provide the fol- lowing [cases and statutes from other states] Rhode Island for consideration in determining whether a Parties either seeking or opposing the child’s best interests are served. Latimer v. relocation of their minor children should Farmer, 360 S.C. 375, 602 S.E.2d 32 (2004). present relevant evidence concerning the South Dakota following factors so that the court may make appropriate findings: Trial court shall consider the best inter- ests of the child when considering a peti- (1) The nature, quality, extent of involve- tion for change of custody based on the ment, and duration of the child’s rela- custodial parent’s relocation. Berens v. tionship with the parent proposing to Berens, 689 N.W.2d 207 (S.D. 2004); Fossum relocate and with the non-relocating v. Fossum, 545 N.W.2d 828 (S.D. 1996). parent. (2) The reasonable likelihood that the relo- Tennessee cation will enhance the general quality (a) If a parent who is spending intervals of life for both the child and the parent of time with a child desires to relocate out-

The Family Law Review 21 November 2005 side the state or more than one hundred existing between the parents and child; 100 miles from the other parent within the (4) The disposition of the parents to pro- state, the relocating parent shall send a vide the child with food, clothing, med- notice to the other parent at the other par- ical care, education and other necessary ent’s last known address by registered or care and the degree to which a parent certified mail. Unless excused by the court has been the primary caregiver; for exigent circumstances, the notice shall be mailed not later than 60 days prior to (5) The importance of continuity in the the move. The notice shall contain the fol- child’s life and the length of time the lowing: child has lived in a stable, satisfactory environment; (1) Statement of intent to move; (6) The stability of the family unit of the (2) Location of proposed new residence; parents; (3) Reasons for proposed relocation; and (7) The mental and physical health of the (4) Statement that the other parent may file parents; a petition in opposition to the move (8) The home, school and community within 30 days of receipt of the notice. record of the child; (b) Unless the parents can agree on a (9) The reasonable preference of the child if new visitation schedule, the relocating par- 12 years of age or older. The court may ent shall file a petition seeking to alter visi- hear the preference of a younger child tation. The court shall consider all relevant upon request. The preferences of older factors, including those factors enumerated children should normally be given within subsection (d). The court shall also greater weight than those of younger consider the availability of alternative children; arrangements to foster and continue the child’s relationship with and access to the (10) Evidence of physical or emotional other parent. The court shall assess the abuse to the child, to the other parent or costs of transporting the child for visitation to any other person; and and determine whether a deviation from (11) The character and behavior of any the child support guidelines should be con- other person who resides in or fre- sidered in light of all factors including, but quents the home of a parent and such not limited to, additional costs incurred for person’s interactions with the child. transporting the child for visitation. (d) If the parents are not actually spend- (c) If the parents are actually spending ing substantially equal intervals of time substantially equal intervals of time with with the child and the parent spending the the child and the relocating parent seeks to greater amount of time with the child pro- move with the child, the other parent may, poses to relocate with the child, the other within 30 days of receipt of notice, file a parent may, within 30 days of receipt of the petition in opposition to removal of the notice, file a petition in opposition to child. No presumption in favor of or removal of the child. The other parent may against the request to relocate with the not attempt to relocate with the child child shall arise. The court shall determine unless expressly authorized to do so by the whether or not to permit relocation of the court pursuant to a change of custody or child based upon the best interests of the primary custodial responsibility. The par- child. The court shall consider all relevant ent spending the greater amount of time factors including the following where with the child shall be permitted to relocate applicable: with the child unless the court finds: (1) The extent to which visitation rights (1) The relocation does not have a reason- have been allowed and exercised; able purpose; (2) Whether the primary residential parent, (2) The relocation would pose a threat of once out of the jurisdiction, is likely to specific and serious harm to the child comply with any new visitation which outweighs the threat of harm to arrangement; the child of a change of custody; or (3) The love, affection and emotional ties (3) The parent’s motive for relocating with

The Family Law Review 22 November 2005 the child is vindictive in that it is (1) The extent to which visitation rights intended to defeat or deter visitation have been allowed and exercised; rights of the non-custodial parent or the (2) Whether the primary residential parent, parent spending less time with the once out of the jurisdiction, is likely to child. comply with any new visitation Specific and serious harm to the child arrangement; includes, but is not limited to, the following: (3) The love, affection and emotional ties (1) If a parent wishes to take a child with a existing between the parents and child; serious medical problem to an area (4) The disposition of the parents to pro- where no adequate treatment is readily vide the child with food, clothing, med- available; ical care, education and other necessary (2) If a parent wishes to take a child with care and the degree to which a parent specific educational requirements to an has been the primary caregiver; area with no acceptable education facili- (5) The importance of continuity in the ties; child’s life and the length of time the (3) If a parent wishes to relocate and take child has lived in a stable, satisfactory up residence with a person with a histo- environment; ry of child or domestic abuse or who is (6) The stability of the family unit of the currently abusing alcohol or other parents; drugs; (7) The mental and physical health of the (4) If the child relies on the parent not relo- parents; cating who provides emotional support, nurturing and development such that (8) The home, school and community removal would result in severe emo- record of the child; tional detriment to the child; (9) The reasonable preference of the child if (5) If the custodial parent is emotionally 12 years of age or older. The court may disturbed or dependent such that the hear the preference of a younger child custodial parent is not capable of ade- upon request. The preferences of older quately parenting the child in the children should normally be given absence of support systems currently in greater weight than those of younger place in this state, and such support children; system is not available at the proposed (10) Evidence of physical or emotional relocation site; or abuse to the child, to the other parent or (6) If the proposed relocation is to a foreign to any other person; and country whose public policy does not (11) The character and behavior of any normally enforce the visitation rights of other person who resides in or fre- non-custodial parents, which does not quents the home of a parent and such have an adequately functioning legal person’s interactions with the child. system or which otherwise presents a The court shall consider the availability substantial risk of specific and serious of alternative arrangements to foster and harm to the child. continue the child’s relationship with and (e) If the court finds one or more of the access to the other parent. The court shall grounds designated in subsection (d), the assess the costs of transporting the child for court shall determine whether or not to visitation, and determine whether a devia- permit relocation of the child based on the tion from the child support guidelines best interest of the child. If the court finds should be considered in light of all factors it is not in the best interests of the child to including, but not limited to, additional relocate as defined herein, but the parent costs incurred for transporting the child for with whom the child resides the majority visitation. of the time elects to relocate, the court shall (f) Nothing in this section shall prohibit make a custody determination and shall either parent from petitioning the court at consider all relevant factors including the any time to address issues, (such as, but following where applicable: not limited to visitation), other than a

The Family Law Review 23 November 2005 change of custody related to the move. In parents; the ages of the children; communi- the event no petition in opposition to a ty ties; health and educational needs of the proposed relocation is filed within 30 days children. Lenz v. Lenz, 79 S.W.3d 10, 14-16 of receipt of the notice, the parent propos- (Tex. 2002). ing to relocate with the child shall be per- mitted to do so. Utah (g) It is the legislative intent that the gen- Change of custody on relocation of custo- der of the parent who seeks to relocate for dial parent shall be determined on the the reason of career, educational, profes- basis of the best interests of the child. sional, or job opportunities, or otherwise, See Hudema v. Carpenter, 989 P.2d 491 shall not be a factor in favor or against the (Utah Ct. App. 1999). relocation of such parent with the child. Vermont Tenn. Code Ann. § 36-6-108. See Wilson v. Wilson, 58 S.W.3d 718 (Tenn. Ct. App. 2001). Adopting § 2.17(1) of the ALI Principles of the Law of Family Dissolution. Under Texas that section, relocation is a substantial If the custodial parent moves a signifi- change of circumstances justifying a reex- cant distance, a finding of changed circum- amination of parental rights and responsi- stances may be appropriate. Such a deci- bilities only when the relocation signifi- sion is necessarily fact intensive but we can cantly impairs either parent’s ability to glean from the case law certain factors exercise responsibilities the parent has which the court should consider: the dis- been exercising or attempting to exercise tance involved; the quality of the relation- under the parenting plan. Hawkes v. Spence, ship between the non-custodial parent and 878 A.2d 273 (Vt. 2005). the child; the nature and quantity of the Virginia child’s contacts with the non-custodial par- ent, both de jure and de facto; whether the A party seeking relocation must show relocation would deprive the non-custodial that a change in circumstances has parent of regular and meaningful access to occurred since the last custody award and the children; the impact of the move on the that relocation would be in the best inter- quantity and quality of the child’s contact ests of the child. The party requesting relo- with the non-custodial parent; the motive cation bears the burden of proof on both for the move; the motive for opposing the issues. Parish v. Spaulding, 26 Va. App. 566, move; the feasibility of preserving the rela- 496 S.E.2d 91 (1998). tionship between the non-custodial parent Washington and the child through suitable visitation arrangements; and the proximity, availabil- The person proposing to relocate with ity, and safety of travel arrangements. the child shall provide his or her reasons for the intended relocation. There is a In determining the best interest of the rebuttable presumption that the intended children in the relocation context, the court relocation of the child will be permitted. A should consider the following factors: rea- person entitled to object to the intended sons for and against the move; education, relocation of the child may rebut the pre- health, and leisure opportunities; accom- sumption by demonstrating that the detri- modation of special needs or talents of the mental effect of the relocation outweighs children; effect on extended family rela- the benefit of the change to the child and tionships; effect on visitation and commu- the relocating person, based upon the fol- nication with the noncustodial parent; the lowing factors. The factors listed in this noncustodial parent’s ability to relocate; section are not weighted. No inference is to parent’s good faith in requesting the move; be drawn from the order in which the fol- continuation of a meaningful relationship lowing factors are listed: with the noncustodial parent; economic, emotional, and education enhancement for (1) The relative strength, nature, quality, the children and the custodial parent; effect extent of involvement, and stability of on extended family relationships; employ- the child’s relationship with each par- ment and education opportunities of the ent, siblings, and other significant per-

The Family Law Review 24 November 2005 sons in the child’s life; court, a parent who has responsibility (2) Prior agreements of the parties; under a parenting plan who changes, or intends to change, residences for more than (3) Whether disrupting the contact between ninety days must give a minimum of sixty the child and the person with whom the days’ advance notice, or the most notice child resides a majority of the time practicable under the circumstances, to any would be more detrimental to the child other parent with responsibility under the than disrupting contact between the same parenting plan. Notice shall include: child and the person objecting to the relocation; (1) The relocation date; (4) Whether either parent or a person enti- (2) The address of the intended new resi- tled to residential time with the child is dence; subject to limitations under RCW (3) The specific reasons for the proposed 26.09.191; relocation; (5) The reasons of each person for seeking (4) A proposal for how custodial responsi- or opposing the relocation and the good bility shall be modified, in light of the faith of each of the parties in requesting intended move; and or opposing the relocation; (5) Information for the other parent as to (6) The age, developmental stage, and how he or she may respond to the pro- needs of the child, and the likely impact posed relocation or modification of cus- the relocation or its prevention will todial responsibility. have on the child’s physical, education- Failure to comply with the notice al, and emotional development, taking requirements of this section without good into consideration any special needs of cause may be a factor in the determination the child; of whether the relocation is in good faith (7) The quality of life, resources, and under subsection (d) of this section and is a opportunities available to the child and basis for an award of reasonable expenses to the relocating party in the current and reasonable attorney’s fees to another and proposed geographic locations; parent that are attributable to such failure. (8) The availability of alternative arrange- The supreme court of appeals shall make ments to foster and continue the child’s available through the offices of the circuit relationship with and access to the other clerks and the secretary-clerks of the family parent; courts a form notice that complies with the (9) The alternatives to relocation and provisions of this subsection. The supreme whether it is feasible and desirable for court of appeals shall promulgate proce- the other party to relocate also; dural rules that provide for an expedited hearing process to resolve issues arising (10) The financial impact and logistics of from a relocation or proposed relocation. the relocation or its prevention; and (c) When changed circumstances are (11) For a temporary order, the amount of time shown under subsection (a) of this section, before a final decision can be made at trial. the court shall, if practical, revise the par- Wash. Rev. Code § 26.09.520. See In re enting plan so as to both accommodate the Parentage of R.F.R., 122 Wash. App. 324, 93 relocation and maintain the same propor- P.3d 951 (2004). tion of custodial responsibility being exer- cised by each of the parents. In making West Virginia such revision, the court may consider the (a) The relocation of a parent constitutes additional costs that a relocation imposes a substantial change in the circumstances upon the respective parties for transporta- under subsection 9-401(a) of the child only tion and communication, and may equi- when it significantly impairs either parent’s tably allocate such costs between the par- ability to exercise responsibilities that the ties. parent has been exercising. (d) When the relocation constituting (b) Unless otherwise ordered by the changed circumstances under subsection (a) of this section renders it impractical to

The Family Law Review 25 November 2005 maintain the same proportion of custodial the relocation on the child. Among the responsibility as that being exercised by modifications the court may consider is each parent, the court shall modify the par- a reallocation of primary custodial enting plan in accordance with the child’s responsibility, effective if and when the best interests and in accordance with the relocation occurs, but such a realloca- following principles: tion shall not be ordered if the relocat- (1) A parent who has been exercising a sig- ing parent demonstrates that the child’s nificant majority of the custodial best interests would be served by the responsibility for the child should be relocation. allowed to relocate with the child so (4) The court shall attempt to minimize long as that parent shows that the relo- impairment to a parent-child relation- cation is in good faith for a legitimate ship caused by a parent’s relocation purpose and to a location that is reason- through alternative arrangements for able in light of the purpose. The per- the exercise of custodial responsibility centage of custodial responsibility that appropriate to the parents’ resources constitutes a significant majority of cus- and circumstances and the developmen- todial responsibility is seventy percent tal level of the child. or more. A relocation is for a legitimate (e) In determining the proportion of care- purpose if it is to be close to significant taking functions each parent previously family or other support networks, for performed for the child under the parent- significant health reasons, to protect the ing plan before relocation, the court may safety of the child or another member of not consider a division of functions arising the child’s household from significant from any arrangements made after a relo- risk of harm, to pursue a significant cation but before a modification hearing on employment or educational opportunity the issues related to relocation. or to be with one’s spouse who is estab- lished, or who is pursuing a significant (f) In determining the effect of the reloca- employment or educational opportuni- tion or proposed relocation on a child, any ty, in another location. The relocating interviewing or questioning of the child parent has the burden of proving of the shall be conducted in accordance with the legitimacy of any other purpose. A provisions of rule 17 of the rules of practice move with a legitimate purpose is rea- and procedure for family law as promul- sonable unless its purpose is shown to gated by the supreme court of appeals. W. be substantially achievable without Va. Code, § 48-9-403. moving or by moving to a location that Wisconsin is substantially less disruptive of the other parent’s relationship to the child. (1) Notice to other parent. (a) If the court grants periods of physical placement to (2) If a relocation of the parent is in good more than one parent, it shall order a par- faith for legitimate purpose and to a ent with legal custody of and physical location that is reasonable in light of the placement rights to a child to provide not purpose and if neither has been exercis- less than 60 days written notice to the other ing a significant majority of custodial parent, with a copy to the court, of his or responsibility for the child, the court her intent to: shall reallocate custodial responsibility based on the best interest of the child, 1. Establish his or her legal residence with taking into account all relevant factors the child at any location outside the including the effects of the relocation on state. the child. 2. Establish his or her legal residence with (3) If a parent does not establish that the the child at any location within this purpose for that parent’s relocation is in state that is at a distance of 150 miles or good faith for a legitimate purpose into more from the other parent. a location that is reasonable in light of 3. Remove the child from this state for the purpose, the court may modify the more than 90 consecutive days. parenting plan in accordance with the (b) The parent shall send the notice child’s best interests and the effects of

The Family Law Review 26 November 2005 under par. (a) by certified mail. The substantial change of circumstances notice shall state the parent’s proposed since the entry of the last order affecting action, including the specific date and legal custody or the last order substan- location of the move or specific begin- tially affecting physical placement. ning and ending dates and location of 2. With respect to subd. 1.: the removal, and that the other parent may object within the time specified in a. There is a rebuttable presumption that sub. (2)(a). continuing the current allocation of decision making under a legal custody (2) Objection; Prohibition; mediation. (a) order or continuing the child’s physical Within 15 days after receiving the notice placement with the parent with whom under sub. (1), the other parent may send the child resides for the greater period to the parent proposing the move or of time is in the best interest of the removal, with a copy to the court, a written child. This presumption may be over- notice of objection to the proposed action. come by a showing that the move or (b) If the parent who is proposing the removal is unreasonable and not in the move or removal receives a notice of best interest of the child. objection under par. (a) within 20 days b. A change in the economic circumstances after sending a notice under sub. (1)(a), or marital status of either party is not the parent may not move with or sufficient to meet the standards for remove the child pending resolution of modification under that subdivision. the dispute, or final order of the court under sub. (3), unless the parent obtains 3. Under this paragraph, the burden of a temporary order to do so under s. proof is on the parent objecting to the 767.23(1)(bm). move or removal. (c) Upon receipt of a copy of a notice of (b)1. If the parents have joint legal cus- objection under par. (a), the court or tody and substantially equal periods circuit court commissioner shall of physical placement with the child, promptly refer the parents for media- either parent may file a petition, tion or other family court counseling motion or order to show cause for services under s. 767.11 and may modification of the legal custody or appoint a guardian ad litem. Unless the physical placement order. The court parents agree to extend the time period, may modify an order of legal custody if mediation or counseling services do or physical placement if, after consid- not resolve the dispute within 30 days ering the factors under sub. (5), the after referral, the matter shall proceed court finds all of the following: under subs. (3) to (5). a. Circumstances make it impracti- (3) Standards for modification or prohibi- cal for the parties to continue to tion if move or removal contested. (a)1. have substantially equal periods of Except as provided under par. (b), if the physical placement. parent proposing the move or removal has b. The modification is in the best sole legal or joint legal custody of the child interest of the child. and the child resides with that parent for 2. Under this paragraph, the burden of the greater period of time, the parent proof is on the parent filing the petition, objecting to the move or removal may file a motion or order to show cause. petition, motion or order to show cause for modification of the legal custody or physi- (c)1. If the parent proposing the move cal placement order affecting the child. The or removal has sole legal or joint legal court may modify the legal custody or custody of the child and the child physical placement order if, after consider- resides with that parent for the greater ing the factors under sub. (5), the court period of time or the parents have sub- finds all of the following: stantially equal periods of physical placement with the child, as an alterna- a. The modification is in the best interest of tive to the petition, motion or order to the child. show cause under par. (a) or (b), the b. The move or removal will result in a parent objecting to the move or removal

The Family Law Review 27 November 2005 may file a petition, motion or order to order under this section in an action affect- show cause for an order prohibiting the ing the family that is pending on May 3, move or removal. The court may pro- 1988. Wis. Stat. Ann. 767.327. hibit the move or removal if, after con- See Hughes v. Hughes, 223 Wis.2d 111, 588 sidering the factors under sub. (5), the N.W.2d 346 (Ct. App. 1998). court finds that the prohibition is in the best interest of the child. Wyoming 2. Under this paragraph, the burden of Modification of custody based upon cus- proof is on the parent objecting to the todial parent’s relocation is determined move or removal. under the general modification statute; (4) Guardian ad litem; prompt hearing. substantial change in circumstances must After a petition, motion or order to show be shown and that modification will serve cause is filed under sub. (3), the court shall the best interests of the child. Watt v. Watt, appoint a guardian ad litem, unless s. 971 P.2d 608 (Wyo. 1999). FLR 767.045(1)(am) applies, and shall hold a Laura W. Morgan is the owner of Family hearing as soon as possible. Law Consulting, which performs (5) Factors in court’s determination. In research and writing services to family making its determination under sub. (3), law attorneys nationwide. She can be the court shall consider all of the following reached at [email protected]. factors: Suggested Bibliography (a) Whether the purpose of the pro- Annotation, Custodial Parent’s Relocation as posed action is reasonable. Grounds for Change of Custody, 70 A.L.R.5th (b) The nature and extent of the child’s 377 (2004). relationship with the other parent and Robert E. Oliphant, Relocation Custody the disruption to that relationship Disputes: A Binuclear Family-Centered Three- which the proposed action may cause. Stage Solution, 25 N. Ill. U.L. Rev. 363 (c) The availability of alternative (2005). arrangements to foster and continue Caroline Ritchie Heil, Relocation Cases as the child’s relationship with and access to the other parent. Change in Custody Proceedings: “Judicial Blackmail” or Competing Interests Reconciled, (5m) Discretionary factors to consider. In 51 S.C. L.Rev. 885 (2000). making a determination under sub. (3), the court may consider the child’s adjustment to Lucy S. McGough, Starting Over: The the home, school, religion and community. Heuristics of Family Relocation Decision Making, 77 St. John’s L.Rev. 291 (2003). (6) Notice required for other removals. Charles P. Kindregan Jr., Family Interests in (a) Unless the parents agree otherwise, Competition: Relocation and Visitation, 36 a parent with legal custody and physi- Suffolk U.L. Rev. 31 (2002). cal placement rights shall notify the other parent before removing the child Janet Leach Richards, Resolving Relocation from his or her primary residence for Issues Pursuant to the ALI Family Dissolution a period of not less than 14 days. Principles: Are Children Better Protected?, 2001 B.Y.U. L.Rev. 1105 (2001). (b) Notwithstanding par. (a), if notice is required under sub. (1), a parent Hon. Arline S. Rotman, Robert shall comply with sub. (1). Tompkins, Lita Linzer Schwartz, M. Dee (c) Except as provided in par. (b), Samuels, Reconciling Parents’ and Children’s subs. (1) to (5) do not apply to a notice Interests in Relocation: In Whose Best provided under par. (a). Interest?, 38 Fam. & Conciliation Courts Rev. 341 (2000). (7) Applicability. Notwithstanding 1987 Wisconsin Act 355, section 73, as affected Edwin J. Terry, Kirstin L. Goodale, P. by 1987 Wisconsin Act 364, the parties may Caren Phelan, Jenny L. Womack, agree to the adjudication of a modification Relocation: Moving Forward or Moving of a legal custody or physical placement Backward?, 31 Tex. Tech. L. Rev. 983 (2000).

The Family Law Review 28 November 2005 COBRA Dear Sir or Madam: continued from page 7 This law firm represents ______, former wife of your employee, ______. Please be meet specific criteria; advised that the parties were divorced on c. Not all group health insurance plans _____ by order of the Family Court, ______are subject to COBRA; County, Case Number ___. (See attached d. Divorce, legal separation and a cov- Order). Therefore, please send any notices ered employee’s termination from and correspondence, including COBRA employment, whether voluntarily or notices, to ______[the client] at the fol- involuntarily, are qualifying events that lowing address: can trigger COBRA coverage; Thank you for your assistance in this matter. e. COBRA’s notice and election require- Family Advocate, “Keep Your Client ments are firm, and if a qualified benefi- Covered with COBRA” by Maxine ciary fails to act timely, the beneficiary Aaronson, pp. 18 – 21, Fall 1990. could lose her rights to COBRA regard- less of the language in a court order; Melissa Brown practices Family Law in f. Some group health insurance plans South Carolina. She is past chair of the allow the covered spouse to keep the South Carolina Family Law Section and ex-spouse on his health insurance policy the current Family Law Council Delegate beyond the divorce; to the South Carolina House of g. Since COBRA is only for a limited Delegates. She may be reached at time period, warn clients to only rely www.melissa-brown.com. upon COBRA coverage until more per- manent coverage is available to them. Such advice is valuable even if a client Endnotes has to pay a premium higher than COBRA’s premium because it is often 1. Avina v. Texas Pig Stands, Inc., No. SA- more important to have long term cov- 88-CA-13, 1991 U.S. Dist. LEXIS 13957 erage than risk not qualifying for cover- (W.D. Tex. Feb., 1, 1991). age after COBRA ends; and 2. McKnight v. School District of h. Identify health insurance experts to Philadelphia, 2001 U.S. Dist. LEXIS 4751 assist your client’s health insurance (E.D. Pa. 2001). needs to identify other long-term health 3. Nakisa v. Continental Airlines, 2001 insurance options. U.S. Dist. LEXIS 20784 (S.D. Tx. 2001). While COBRA is a complex federal reg- 4. It is permissible for a health insurance ulation whose intricacies are better left to plan to provide for longer periods of cover- those attorneys practicing employment, tax age beyond those periods set forth in and business law, family law practitioners COBRA. Therefore, checking the actual cannot ignore its potential impact upon plan language is sometimes critical in cer- certain clients. If your client’s financial tain divorce/legal separation cases. future beyond their divorce or legal separa- 5. However, see footnote 1. tion is largely tied to the cost of future health care, make sure you properly advise 6. This 18-month period may be extended your client so you do not suffer the poison- for all qualified beneficiaries if certain con- ous venom of COBRA’s fangs! FLR ditions are met in cases where a qualified beneficiary is determined to be disabled under COBRA. EXHIBIT A Employee Benefits Plan Administrator XYZ Corporation 1212 Main Street Nowhere, US XXXXX

The Family Law Review 29 November 2005 Case Law Update: Recent Georgia Decisions

By Sylvia A. Martin and M. Debra Gold

Alimony ment or “rendering herself financially, and thus legally, defenseless in the subsequent Farrish v. Farrish, 279 Ga. 551 (2005) divorce action.” The Court held that such a The husband appealed the trial court’s situation would go against public policy order requiring him to pay his former wife and therefore reversed the trial court’s $2,000 in alimony and $3,000 in child sup- judgment providing for the offset. port, contending that the amount was dis- Appeals: Transcript proportionate with his ability to pay. The Supreme Court affirmed the trial court Hensley v. Young, holding that the trial court has wide lati- 273 Ga. App. 687 (2005) tude in setting the amount of alimony based upon the facts and circumstances of Blue v. Blue, 279 Ga. 550 (2005) each case. In the instant case the trial court Both appeals were denied because of the considered the husband’s income and parties’ failures to perfect the records for assets as well as the facts that he had not appeal. In Hensley, appellant argued that accounted for funds he had misappropriat- she had ordered and paid for the prepara- ed after the separation and that he had tion of the transcripts. However, appellant accumulated substantial debt supporting failed to ensure that the transcripts from his paramour and her family. Based on the the trial court were timely filed with the facts, the Supreme Court held that the trial appellate courts, and thus they were not court did not abuse its discretion. included in the record. In the Blue case, the Alimony/Prenuptial Agreement trial court proceedings were not taken down by a court reporter and thus there Langley v. Langley, 279 Ga. 374 (2005), was no transcript. The appellate courts in 05 FCDR 1559 (5/23/05) both cases held that it is the parties’ responsibilities to perfect the record for The parties entered into a prenuptial consideration upon appeal. Absent such agreement which provided that in the transcripts and records, the appellate event of divorce, Husband would pay Wife courts are bound to presume that the evi- $25,000 in lump sum alimony. Both parties dence supports the trial court’s findings. waived further alimony. The trial court credited amounts Husband paid for tempo- Attorney’s Fees rary alimony and attorney’s fees toward the lump sum alimony obligation he owed Thornton v. Intveldt, pursuant to the agreement and the 272 Ga.App. 906 (2005) Supreme Court reversed. Intveldt filed a complaint for modifica- The Court held that the character and tion of custody and child support and purpose of temporary alimony is different Thornton counterclaimed seeking custody. from that of permanent alimony in that it is The parties ultimately settled the issue of intended to provide for the “exigencies physical custody of the children and the arising out of the domestic crisis of a pend- trial court tried the issues of child support ing proceeding for divorce.” If the trial and where the exchange location would be court allows the Husband to offset the for visitation. The trial court awarded lump sum alimony with the sums he paid Intveldt $3,000 in attorney’s fees and toward temporary alimony, the trial court Thornton appealed. The Georgia Court of would be placing the Wife in the position Appeals reversed the trial court because of losing her agreed-upon financial settle- even when child support is at issue, a non- custodial parent seeking a change of cus-

The Family Law Review 30 November 2005 tody is not entitled to an award of attor- did not interfere with his full-time enroll- ney’s fees. ment in school. There was no evidence that the son voluntarily dropped out of school, Child Support nor that a part-time attendance was avail- Bullard v. Swafford, able to him. The Court found that it was S05A0722, 05 FCDR 2825 (9-19-05) error for the trial court to focus on the son’s absences and tardies to determine if Pursuant to the parties’ Final Judgment he was enrolled and/or attending full time. and Decree of Divorce, the father was Furthermore, the Court found that the trial required to pay child support for the par- court erred in finding that the son’s failure ties’ son until such time as the child turned to attend summer school justified a termi- 18, died, married, became otherwise eman- nation of support. The Court found that cipated or if he was enrolled in and attend- because the son had attempted to attend ing high school on a full-time basis, then such support would continue until gradua- tion from high school or turning the age of 20, whichever first occurred. The son turned 18 three months before his gradua- tion from high school. Due to many absences and tardies, he did not have enough credits to graduate. Although he enrolled in summer school to obtain the proper credits, the summer school program in his school district was canceled, and so the son enrolled in the fall semester to obtain his diploma. The father stopped paying child support the day after the son was supposed to graduate in the spring and filed a motion asking the court to declare that the son was emancipated or that material circumstances had changed such that the son refused to attend school and so the child support should be halted. The trial court found that, because of the son’s absences, tardiness and failure to attend summer school, the son was not a full-time student and ruled that the father’s child support terminated when the school year ended and the son stopped attending school on a full time basis. On appeal, the mother claimed that the trial erred in expanding the scope of summer school and had enrolled for the O.C.G.A. § 19-6-15(e) because there is no following fall semester, that he had not requirement in the statute that a child be a dropped out of school. Additionally, the full-time student. The Supreme Court Court found that the purpose of the par- found that although the requirement was ties’ support provision was to enable the not in the statute, parties are allowed in child to complete his high school educa- settlement agreements to reach agreements tion and that the trial court’s rulings in matters for which there is no statutory defeated such an important goal. authority and such agreements are Jurisdiction enforceable upon divorce. Thus, because the parties agreed that the son would have Wilson v. Wilson, 279 Ga. 302 (2005) to be a full-time student, then such obliga- While an appeal was still pending tion was enforceable. However, the regarding the underlying divorce judgment Supreme Court reversed the trial court, from Spalding Superior Court, the wife finding that the son’s absences and tardies

The Family Law Review 31 November 2005 brought a modification of custody action in establish custody of the child. Before a Fulton Superior Court where the husband child is legitimated, only the mother is resided. See also, Wilson v. Wilson, 277 Ga. entitled to the child’s custody. However, 801 (2004). When the Supreme Court once a child is legitimated by the father, reversed the underlying judgment on the then the father has standing as any parent basis that the trial court had not allowed to seek custody of the child. Because the counsel to make closing arguments, the custody action was the first determination wife filed a motion to dismiss the Fulton of custody, the Court held that the trial County action. The trial court refused to court should have applied the best interest dismiss, ruling that it retained jurisdiction standard and remanded the case for the trial court to apply the proper standard. Settlement Agreement: Contract Interpretation Torgesen v. Torgesen, 274 Ga.App. 298 (2005) The husband and wife entered into a set- tlement agreement as part of their divorce. The agreement provided in part that hus- band would receive the marital residence free and clear from any claim by wife, that husband was required to refinance the resi- dence within 12 months of the date of the agreement to remove wife’s name from the mortgage, and that upon being removed as a party to the debt, wife would execute a quitclaim deed to husband relinquishing regarding matters not enumerated in the her interest in the residence. Husband died original appeal. The Supreme Court in the six months after the execution of the agree- instant case reversed the trial court, hold- ment. After husband’s death, the adminis- ing that absent specific direction from the trator of his estate contacted wife to sign an Court, a reversal of a judgment is a grant of assumption and release of liability docu- a de novo trial with regard to all of the ment. Wife refused to sign and sued the issues contained therein. Therefore, the estate claiming that because husband did modification action must be dismissed in not refinance the debt within 12 months, Fulton County. she was not required to sign a quitclaim deed and thus retained an undivided half Legitimation and Custody: Best interest in the property. Interest Standard The trial court agreed with wife, found Branyon v. Hilbert, that the estate had failed to perform within A05A0811, 05 FCDR 2927 (9-16-05) the stated 12 months, had breached the contract by not refinancing the mortgage, The biological father of a four-year old and it entered an order stating that wife child filed a petition to legitimate his son. had no obligation to execute a quitclaim The parties entered into a consent order deed and that she retained a half interest in whereby the child was legitimated, the the residence. On appeal, the Court of father paid child support and was given Appeals reversed the trial court, finding visitation with him. The father then filed a that time was not of the essence of the con- separate action seeking custody of the tract and so the estate had a reasonable child. The trial court denied the father’s time to perform. Pursuant to O.C.G.A. § 13- petition, finding that father failed to show 2-2(9), unless a contract expressly states a change in circumstances affecting the otherwise, time is not generally of the welfare of the child in order to obtain cus- essence of a contract. The court held that tody. The Court of Appeals reversed, find- the question of whether the estate per- ing that the legitimation action did not formed within a reasonable time was for

The Family Law Review 32 November 2005 the trier of fact to determine. The Court of that such evidence is grossly inappropriate, Appeals also held that the trial court erred and in this matter it is impossible to con- in finding that the estate breached the con- clude that such evidence did not affect the tract by failing to remove wife’s name from jury’s verdict and sets forth Georgia law the debt obligation. The facts showed that which is contrary to the majority’s holding. the estate had paid off the entire mortgage The trial court also allowed wife to testify with proceeds of the estate. Because the about payments husband made to her after clear intent of the agreement was that their separation. The parties separated in when wife was no longer responsible for 1995 and separated in 2003. Wife testified the debt, she would convey her interest in to payments husband voluntarily made to it to husband, the court found that the her during that period. The Supreme Court estate had complied with the agreement. held that such admission was not error as As a result, the failure to refinance the loan the date of separation was in dispute which was not a material breach of the agreement. was a matter for the jury to decide. The jury was instructed that after determining Trial Evidence: Litigation the date of separation, it was not to consid- Expenses; Post Separation er any payments made by husband after Payments that time. Groover v. Groover, 279 Ga. 507 (2005) Trial: Waiver of Argument At the trial of the parties’ divorce, the Francis v. Francis, 279 Ga. 248 (2005) trial court allowed wife to testify about the amount of attorney’s fees she had paid thus At trial, the husband objected for the first far and the amount still owed to her coun- time to psychological evaluations which sel. On appeal to the Supreme Court, hus- the trial court had ordered one and one- band contended that admitting such evi- half years earlier and which had already dence was error as the trial court is the sole taken place. The basis of his objection was arbiter of attorneys fees which is to be that the psychologist had previously con- determined after taking into consideration sulted with his wife. The trial court over- the parties’ respective financial situations. ruled the husband’s objection and the The majority agreed that the admission of Supreme Court affirmed holding that the litigation expenses is error. However, the husband waived his right to object to the Court stated that, due to its inability to appointment of the psychologist by waiting conclude from the record that such evi- to raise the issue until final trial. The Court dence affected the jury’s verdict (award of held that any objection should have been $222,000 lump sum alimony, the marital made as soon as the facts for the basis of home and its contents, and a car all award- the objection became known to the hus- ed to wife), such admission did not war- band. Since the husband did not show that rant a grant of new trial in this case. he was unaware of the facts prior to trial, the trial court properly overruled his objec- In Justice Hunstein’s dissent, she states tion. FLR

Save the Date! Family Law Institute May 25-27, 2006 Sandestin, Fla.

The Family Law Review 33 November 2005 Ethics gation to the child that would, in some continued from page 9 instances, justify subordinating the express wishes of the parent. For example, “if the Additional standards provide family lawyer represents the guardian as distinct lawyers with some protection and even from the ward, and is aware that the empowerment when representing a client guardian is acting adversely to the ward’s like John or Meg. A special section in the interest, the lawyer may have an ethical Standards entitled “Children” contains an obligation to prevent or rectify the excellent argument that as officers of the guardian’s misconduct.” (ABA Comment to court lawyers have obligations to children Rules of Professional Conduct 1.14.) along with their obligation to their client: Contested custody disputes in which a The lawyer must represent the client client’s conduct is governed by vindictive- zealously, but not at the expense of chil- ness or financial leverage, substance abuse, dren. The parents’ fiduciary obligations for or emotional stability, or even when the the well-being of a child provide a basis for child’s best interest is simply not being the attorney’s consideration of the child’s regarded, can cause enormous harm to the best interests consistent with traditional children involved. Lawyers representing adversary and client loyalty principles. Jane or Doug also need guidance in with- This section suggests that well settled standing spurious custody fights. The legal principles governing the fiduciary AAML Standards offer a good example of duties of guardians for wards might be an ethical code that should enable a family applicable in some custody litigation: lawyer representing a Jane, John, Meg, or Doug to uphold the law and also to help It is accepted doctrine that the attorney preserve a family. FLR for a trustee or other fiduciary has an ethi- cal obligation to the beneficiaries to whom This article, reprinted with permission the fiduciary’s obligations run. To the from the American Inns of Court and extent that statutory or decisional law Jeanney M. Kutner, was originally pub- imposes a duty on the parent to act in the lished in the September/October 2005 child’s best interests, the attorney for the issue of The Bencher, a bi-monthly publi- parent might be considered to have an obli- cation of the American Inns of Court. YLD Establishes Committee for Young Family Lawyers

By Jonathan Tuggle, [email protected]

he newly founded creating awareness of the lawyers throughout the Family Law new committee. state, the committee will be TCommittee of the The Family Law hosting an annual seminar Young Lawyers Division of Committee was founded and a signature event raising the State Bar of Georgia is through the efforts of its first funds and awareness for officially off the ground. The chairman, Jonathan Tuggle, family-related causes. committee, which boasts of Warner, Mayoue, Bates All members of the YLD more than 50 members, host- and Nolen of Atlanta. The (lawyers under the age of 36 ed its “Kick-Off” Reception committee has held its initial or who have been practicing at the Annual Family Law meetings in an effort to for less than five years) who Institute held at the Ritz- organize its structure and have interest in the practice Carlton on Amelia Island in identify areas inside and of family law or who would May 2005. Attended by outside the legal community like to be a part of the new lawyers and judges who where opportunities for committee are encouraged to were among the 400 plus service exist. Aside from call Jonathan Tuggle at (770) attendees at the Institute, the providing a networking 951-2700 or e-mail him at event was a great success in opportunity among younger [email protected]. FLR

The Family Law Review 34 November 2005 From the Former Editor By Kurt A. Kegel [email protected]

s the summer ends and the seasons began the publication. change to fall, so does my tenure as I am sure that many of you are aware of editor of the Family Law Review. A the changes that are taking place in our law However, I look forward to continuing to both in the legislature and through the work with Steve Steele, our current chair, opinions that we are receiving from our Shiel Edlin, our current vice-chair and all Supreme Court under the “Pilot Project” of the other members of the executive com- that remains up and running at full speed. mittee of the Family Law Section as I remain involved as secretary of the section. It will remain our commitment to stay on top of all of these developments and to You will notice in this newsletter that continue to bring the latest to you. Randy Kessler of Kessler & Schwarz in Atlanta, who is the newest member of our In the meantime, I hope to continue to executive committee, has graciously agreed see everyone around and at upcoming to take over the editorship of the Review. seminars. If anyone is aware of develop- Randy is assisted by Marvin Solomiany, ments around the state or other important also of Kessler & Schwarz. I look forward matters that should be communicated to to their involvement and I know that they our section, please bring them to our atten- will continue to carry the torch and make tion, so we can let the rest of the section this Review everything that Jack Turner know by including those developments in originally envisioned it to be when he our publication. FLR Past Chairs of the Family Law Section Richard Nolen ...... 2004-05 Hon. Elizabeth Glazebrook . . 1989-90 Thomas F. Allgood Jr...... 2003-04 Barry B. McGough ...... 1988-89 Emily S. Bair ...... 2002-03 Edward E. Bates Jr...... 1987-88 Elizabeth Green Lindsey . . . .2001-02 Carl Westmoreland ...... 1986-87 Robert D. Boyd ...... 2000-01 Lawrence B. Custer ...... 1985-86 H. William Sams ...... 1999-00 Hon. John E. Girardeau . . . . . 1984-85 Anne Jarrett ...... 1998-99 C. Wilbur Warner Jr...... 1983-84 Carl S. Pedigo ...... 1997-98 M.T. Simmons Jr...... 1982-83 Joseph T. Tuggle ...... 1996-97 Nancy F. Lawler ...... 1995-96 Kice H. Stone ...... 1981-82 Richard W. Schiffman Jr...... 1994-95 Paul V. Kilpatrick Jr...... 1980-81 Hon. Martha C. Christian . . . .1993-94 Hon. G. Conley Ingram . . . . . 1979-80 John C. Mayoue ...... 1992-93 Bob Reinhardt ...... 1978-79 H. Martin Huddleston ...... 1991-92 Jack P. Turner ...... 1977-78 Christopher D. Olmstead . . . .1990-91

The Family Law Section of the State Bar of Georgia wishes to thank Tina Shadix Roddenberry and Christine Bogart for their service as Members-at- Large for the Executive Committee of the section. Tina and Christine have served the section well and their time, energy and enthusiasm have been of enormous benefit to our section.

The Family Law Review 35 November 2005 Family Law Section Executive Committee Executive Committee Officers Jonathan Tuggle, YLD Family Law Committee [email protected] Stephen Steele, Chair www.wmbnlaw.com [email protected] www.mijs.com Richard M. Nolen, Immediate Past Chair [email protected] Shiel Edlin, Vice Chair www.wmbnlaw.com [email protected] www.stern-edlin.com Members-at-Large Kurt A. Kegel, Secretary/Treasurer Edward J. Coleman III [email protected] [email protected] www.dmqlaw.com John F. Lyndon Randall Kessler, Editor [email protected] [email protected] Carol Ann Walker www.kesslerschwarz.com [email protected] Marvin L. Solomiany, Assistant Editor Karen Brown Williams [email protected] [email protected] www.kesslerschwarz.com

Family Law Section NON-PROFIT ORG State Bar of Georgia U.S. POSTAGE Randall Kessler, Editor PAID 104 Marietta St, NW ATLANTA, GA Suite 100 PERMIT NO. 1447 Atlanta, GA 30303