One of the first and most important things you want to do is get the notice and letter out. If you are going to be moving a substantial distance where it is going to affect the parenting time, I would advise that you file a motion with the court to modify the parenting plan. Hypothetically, if this were a long-distance move, where the time in which each parent spends with the child or children would be substantially impacted, then it would not make sense to maintain the same schedule.
Therefore, it would be best to file a motion. For example, say there are two parties residing in Johnson Count and one of the parents wants to move to Shawnee County, Kansas, which is where Topeka is, assuming they have good reasons. In that situation, the parent wanting to move provides the letter and the notice via return receipt requested certified mail to the last known mailing address. In that situation, say the other side does not object to the move, you could technically then move at that point. However, they were both previously residing in Johnson County, where they shared nearly equal time. Obviously, now it is going to be very hard for the parent who stays in Johnson County, or the parent who stays in Topeka, to maintain the exact same schedule.
Obviously, the other parent who is staying had Monday and Tuesday, and the parent who is moving has Wednesday and Thursday. There is no way the parents will be able to drive an hour or so back and forth to and from school a couple of times a week. Therefore, the best practice would be to file a motion. I realize it is a complex chain, but if you just give the notice and move, then there is still an order out there that says you guys have to follow this parenting time schedule. One party or the other is going to likely allege the other one is not following it, and in that scenario, if you are the parent who moved, and you did not file anything to change the schedule, the parent who did not move is going to have the upper hand. They are going to say, “Look, I’m not the one who created this big flux. I didn’t move, they did. Not only did they move, now they’re trying to take away my parenting time without a court order or approval.”
That is why you start with a letter. It would be appropriate to then file a motion. That is why it would be wise to contact an attorney as soon as you are beginning to think about this as a serious thing. By preparing in advance, your attorney will have plenty of time to get some documents together for you, and help collect evidence to attach to motions. Although you do not have to, you probably want to go ahead and file a motion. If you do not file a motion and you do a significant move that affects parenting time, the parent moving could incur the wrath of the court for not seeking to notify the court or do anything to change the plan.
In other words, the court would put an expectation on any adult to be able to process and understand that a move is going to impact your schedule with the kids. You, as one parent, do not have the right to unilaterally dictate what the schedule is. Until you get that modified, that is a civil court order that you can be held in indirect contempt of court for not following. In Johnson County, and most district courts in Kansas, you would file that motion and then your attorney or the person pro se would request a hearing date on that motion. Chances are, if you give the notice, it could be potentially hard to get a hearing date within thirty days. However, an attorney might say, “Hey, let’s just go ahead and file a motion before you give the notice.” That way, you have the notice correspond with the hearing date. With those two things, a notice and a motion, you would eventually want to request a hearing in front of the judge so he can adjudicate the issue. Most judges in Johnson County would often order a third party investigation involving the case, the background, and the facts if both parties had good reasons for wanting to move and wanting to object the move.
That third party investigation can appear through many different court orders. One might be for a guardian ad litem to be appointed, which is an attorney to act for the kids. Another one might be the court ordering a custody evaluation through the local section of domestic court services. In that situation, like a GAL, you still have a third party coming in and investigating facts. The court would likely order an investigation because you cannot have kids in court to testify. So when you have things like the interest of the kids, and how it might impact the kids, it would be very difficult for the court to get that information and evidence into the court. During the course of those investigations, third parties go out and talk to the teachers, daycare providers, and anyone that the child or children might have had contact with. The investigation will also include a talk with the parents, and most importantly, a talk with the kids.
Some questions the third parties may ask the kids would include, “How do you feel about it?”, “Do you want to move?”, “Are you excited about the move?”, “Are you scared of the move?”, or “Are you terrified of the move and want to stay with the other parent?” One of the factors is the desires of the child at a sufficient age and maturity. By doing the third party investigation, you can very objectively and very efficiently get the viewpoints and the feelings of those children. Otherwise, this is an evidentiary issue. A parent cannot go into court and say, “My child told me this, that and the other,” because that is traditionally referred to as hearsay, which is inadmissible in court.
That is why in this move situation, the letter and motion are so important. No matter what, you do have to at least get the letter out thirty days before the move. That is a clear statutory deadline. At that first initial hearing, you are going to hear the judge say, “Yeah, this is going to be a tough case for me to decide,” and that is true. These are usually the hardest cases for judges to decide, because typically both parties have good reasons. And at the end of the day, they are going to have to ruin somebody’s day. That is why the judge will say, “With that all said, I’m going to have somebody look into this objectively.”
An officer of the court is highly trusted and respected, and includes guardian ad litem, or GALs, and people who work at court services. They are trained to go out and pull information together and present it back to the judge, typically offering a recommendation. Usually, that GAL or court representative will say, “Hey, this is what I think about mom or dad’s request to move.” Whatever that report and recommendation is, will carry a lot of weight in the courtroom. That would be very probative of what the judge would likely do, and the decision the judge would likely make would more than likely follow the recommendation of the investigation.
Moving is by no means a simple process. But there are situations where people get these things done civilly and amicably. There are times parents who realize that a move may be for the best interest of the kids, and so they can agree upon all that. There are situations, more rare than not, where the other side might not object, and the parties might be able to talk out a scenario where one party realizes, “You know what? This probably is good for the kids to move, and still maintain a good chunk of time.” If you do have parents who live far apart like that, what the courts would traditionally do is either give one or two weekends a month, so one weekend traditionally is allowed to be spent wherever the geographical parent is. Again, a situation where you had parties here in Kansas, one side petitions to move, the court allows it. The court allows not only the move, but the kids to move with that parent, and so the parent in Kansas now becomes a long distance parent.
Typically, what that parenting plan would then say is that “The parent in Kansas can have one weekend a month in Kansas with their kids, to be arranged,” with specific provisions on how they coordinate and arrange the schedule that time. Traditionally, if you ask for it, the courts will allow that same parent to have a weekend of time at the children’s home base. For example, one parent moves to Boulder, Colorado and the other is in Kansas as the long distance parent. Typically, the plan would read as, that parent in Kansas gets one weekend a month in Kansas, then if they want, they can elect to get a hotel and go out to Colorado for one weekend a month.
As one can appreciate, some people for financial reasons simply cannot afford to coordinate two trips like that. That is the basis of the month-to-month. However, something courts traditionally also try to do is give the long distance parent as much time during all school breaks and summer vacations as possible. It makes sense, because they do not have to worry about getting the kids to school every day, and so on and so forth. In most cases, the court is still fair, and gives the parent who had primary custody, some of the summer. The rationale there is that it is not very fair to have one parent deal with the extra-curricular activities, homework, and the laundry during the school year, and then when summertime rolls around, the kids are off on vacations with the other parent. The courts still give the residential parent some time over the summer, but traditionally, assuming the facts warrant, they will try to figure out a way to carve out as much of that break time to the other parent. They work to do this while being cognizant of the fact that both parties deserve to have some time with the kids during the school breaks to travel and do fun things like that.