Children of Divorce - Children's Rights & Parent's Rights

Children's Parents Rights Often Conflict
by Honorable Anne Kass. Ann Kass is a District Judge in the Second Judicial District State of New Mexico

At a recent court hearing, I was faced with a divorced mom, a divorced dad, a step-dad and a step-mom-the proverbial "reconstituted family." What they all had in common was a 5-year-old little girl.

The step-father was a native of Hawaii. He wanted to return to his home there, and, of course, to take his wife and step-daughter with him.

He was astonished and angry to learn that the laws of New Mexico prevented the removal of the little girl from New Mexico unless her father agreed or the court allowed it.

He said, "I have a right to live wherever I choose. This New Mexico law must be unconstitutional because it interferes with my rights."

He seemed surprised to learn that rights are not absolute--that rights often conflict.

In this instance his right to live where he wished conflicted with the little girl's right to spend regular and frequent time with her father and the father's right to spend regular and frequent time with his daughter.

One of the most common causes of post-divorce litigation is one parent's decision to move to another state, or even another city.

Most of the time the parent who wants to move has very good reasons--they want to return to where their families live or to move to where they have a better-paying job or to where their new spouse has been transferred, and they want to take the children.

The parent who's left behind also has good reasons why they don't want the children to leave. They want to see the children every day or at least every week.

Often the children also have good reasons why they don't want to leave Albuquerque or New Mexico. They don't want to change schools or friends.

The Court's job in these cases is to balance the competing rights. To make the job a little less difficult, the law directs the Court to, "do what is in the children's best interests." That is, the court is to give more weight to the children's rights and needs than to the parents' rights. The children's rights and needs include the right to spend time with both parents, and the need to have as much consistency as possible--consistency in the schools they attend, and the activities they participate in.

Sometimes the proposed move is to a far-away place, and the cost of traveling from there to New Mexico can be very expensive. Because too-little-money is a common problem for divorced families, they often haven't the funds to make regular travel possible.

Sometimes the children are too young to travel alone, which would triple the cost of travel as one parent would have to fly back and forth with the children.

These cases are the quintessential example of a right-right-right problem, and each case has to be decided on its own facts. The decision is a difficult one for the parents, their lawyers and the judge.


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