What to do when facts change in your family law case, part 1: Living situation changes

December 6, 2013

Family law gavel(Editor’s note:  Family law cases may be some of the most fact-sensitive of all; even minor changes in circumstances can have profound effects on the outcome of the case.  So what do you do when there is a change in the facts of your family law case?  We’ll answer that question in a series of posts on the topic.)

Changes in someone’s living situation could mean a variety of things, some with greater implications than others.

In nearly all circumstances, this change means one or both parents changing residences.  This isn’t a very big deal if the parent’s move was a few miles away.  But the farther away the new residence is from the old, the more significant the move.

Here are some examples: if a parent’s new residence is ten miles away from the old one, and it’s outside of the children’s school district, there may be some problems.  Specifically, the relocated parent may have additional burdens in ensuring that the children can regularly get to school or daycare on time.

In addition to the school/daycare issues, a move may create complications for parenting time exchanges.  For example, if a non-custodial parent moves 25 miles away (or more), a court may view this as creating a substantial enough change so as to merit reducing that parent’s parenting time.

If the opposing party has undergone such a change in residences, your client may suffer if the other parent fails to take any extra effort to minimize the effects of the change.

If you’re embroiled in a parenting time or custody dispute, the move may help your client’s goal in reducing the other parent’s parenting time – but it should only be brought up as part of your argument if the other parent truly hasn’t done anything to offset the hardships created by the move and if the children have been negatively affected in some way because of the move.

Conversely, what you as the attorney need to do in these situations to mitigate the negative effects on your client’s case is to inform your client to take whatever steps possible to soften the impact of the change to the greatest extent possible.  Make sure your client is willing to travel the added distance – both ways, if necessary to preserve the parent’s parenting time award.

Besides a change in the physical distance between two parents’ residences, however, a move can complicate your case in other ways.

If, for example, a parent (because of financial considerations) moves into a smaller residence – one, perhaps, unable to accommodate the children as well as the previous residence – that could be a serious factor for the court in considering a parenting time amount.

What your client needs to do in such a situation is to go to as great of lengths as possible to make sure the residence – no matter how small – can properly accommodate the children.  Yes, this might significantly reduce how much space the parent has available for non-child-related activities and interests; but if your client truly cares about getting parenting time with the children, this shouldn’t be an issue.

On the other hand, if your opposing party has moved into a residence that is significantly less able to accommodate the children, it should only be brought up in your argument if the parent is making little or no effort to make the space as comfortable as possible for the children.

Courts are quite hesitant to punish parents for their financial circumstances, which they would effectively be doing by reducing parenting time for a parent that was forced to move into a smaller house or apartment because of finances.  If, however, the parent doesn’t go to great lengths to provide for the children’s needs and comfort, the court may be more willing to punish that parent – but it will be a punishment not for his or her financial circumstances, but one for failing to put the children’s needs first.

Finally, a change in a parent’s living situation may not have anything to do with a change in physical distance, nor a change in the residence’s size; it may be because of who the parent is living with.

At the outset, a court is not going to punish a parent simply for his or her lifestyle choices.  That said, however, if the person with whom the parent now resides is somehow negatively impacting the children, that parent could be facing a reduction his or her parenting time.

The most glaring example of this is a roommate who physically, sexually, or emotionally abuses the children or the parent (in front of the children).  Although such a person is most typically the parent’s significant other, it doesn’t necessarily need to be.

Roommates could also negatively affect the child in other ways besides outright abuse: a roommate’s lifestyle choices, such as smoking or drinking, lack of cleanliness, or other activities that aren’t child appropriate may be a cause of concern for the court, as would a roommate with a criminal history (especially one who is a registered sex offender).

The best advice to give to your client in circumstances such as these is to get the roommate’s behavior under control to the extent that it no longer impacts the children.  If that isn’t possible, the parent should stop living with the roommate.

If the opposing party is in such a living situation, and he or she isn’t doing much (or anything) to remediate it, this fact can be used to great effect in your argument: by failing to either change the roommate’s behavior or stop living with him or her altogether, the parent is placing his or her needs ahead of the children’s, who are being negatively affected by the roommate.

There are also circumstances in which the parent’s roommate may be perfectly harmless, but his or her mere presence may negatively impact the children.  The far most common situation that this is found is when a parent has ended the marriage because of his or her intimate relationship with another person – and the parent then moves in with that person during the divorce proceedings.

If the children are young (usually under age nine), this, by itself, is no cause for concern.  If the children are teenagers, however, they will likely be fully aware of the impact that this person had on their parents’ marriage, and may well be quite uncomfortable spending time at the residence – even if that person isn’t present.

Again, as with most things in family law, this fact should only be relevant to your argument if the parent is placing his or her own interests above those of the children’s.

The next post in this series will cover the potential impact of changes in a parent’s work circumstances