Don’t move out too soon. It’s harder to fight for custody and visitation after you’ve left the house.

Posted September 23rd, 2016.

Categories: Child Custody, Custody Tips, Family Law.

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Here’s a typical sequence of events: The marriage explodes in a final showdown. Father moves out. Mother stays behind in the marital home with the two children. When things settle down a week later, the parties exchange some emails and phone calls. Father wants to see the kids; Mother wants to see some financial support. Within a month or two, a divorce is filed, and Father is asking for custody, or joint custody, or substantial visitation and parenting time.

The problem is that Father has already hurt his chances of success by moving out. By leaving the marital home, father has made himself the odd-man-out. Mother remains with the kids in the environment in which the kids are most comfortable — surrounded by their friends and neighbors, in the same school district, without the disruption of relocation.

Not that Father could have stayed in the house indefinitely. Indeed, it might have been appropriate for him to move out, to prevent the risk of domestic violence, to restore peace to the children’s lives, or to signify that the marriage has finally ended. But moving away from the home where the children live unmistakably gives an advantage to the parent who stays behind. Therefore, it is important for Father to think twice before packing his bags.

If there is no urgency involved, then Father should stay in the home long enough to negotiate and/or mediate the custody and parenting time arrangements. While Father is still present, he retains the leverage of proximity to the children, and in fact may have the capacity to protract his move until he gets what he wants. (If you’re a Mother reading this, the advice works in reverse: It may be beneficial to hasten Father’s relocation out of the house before you get into custody discussions. This way, you’ll have the home-base negotiating advantage).

If both parties are contesting ownership of the house and fighting over custody, then it may be appropriate to broaden the discussions to cover both issues. Before anybody moves out, the parties should examine what serves the best interests of the children. What makes financial sense for each of them and for the family? It doesn’t necessarily matter which parents leaves the house (assuming one of them must move out), but relocating the children can have many significant ramifications — academically, socially, financially, and medically. That is perhaps why the most typical scenario involves one party (often the Father) moving out, and the other party (the Mother) staying behind with the kids. If this is case, slow it down and address the parenting and time-sharing arrangements before the moving van pulls up to the house.

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