– from Carolyn I. in Wales, WI

Question Details:

When my husband and I divorced we agreed on joint custody, but I received physical placement of our children. We did agree that he would have full access to the children, including visitations as he sees fit. Now, I am moving out of state with the children. He is threatening to take action. He says he is going to move the court to give him physical placement. Can he do that?

Family Law Attorney Response:

Yes he can, but whether it actually happens or not is at the full discretion of the court. He would have to prove that finding a new home for the children out of state would be against the best interests of the children. It may impede his visitations, but the parent granted physical custody maintains the right to decide for the family unit.

In an extreme case, Bohms v. Bohms 144 Wis. 2d 490, 424 N.W.2d 408 (1988) (Modifying and, as modifying, affirming 140 Wis. 2d 529, 410 N.W.2d 658 (Ct. App. 1987)) saw a very complex version of your situation. The varied circumstances aside, the father made an attempt to gain physical custody of the children due to the mother's move. The court granted the physical custody change to the father. The mother appealed and the decision was reversed. Upon review by the supreme court, the decision of the appeals court was modified and affirmed as modified.

My advice to you is to contact an attorney right away to discuss the details of your case before moving forward.

Trisha Festerling, J.D.

Family Law Attorney

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