Ruling on Alabama Relocation Statute

We have our first appellate case now interpreting the Alabama Parent Child Relationship Protection Act, and it permits the relocation to occur. In Clements v. Clements, Case No. 2030768 (Ala. Civ. App. February 11, 2005), the Appeals Court affirmed the judgment of the trial court in Autauga County. The trial court’s opinion hadn’t expressly said so, but the Appeals Court deemed the trial court to have found that the relocating mother had succeeded in overcoming the presumption against relocation. This therefore shifted the burden to the non-relocating father, who sought a transfer of custody from the mother to himself.

The court ruled that any change of custody continued to be governed by the McLendon standard and that it would not disturb the finding of the lower court on ore tenus evidence that the father had not met his burden.

The father and the mother both presented evidence regarding their relationship with the child and their fitness as parents. It is clear that both parties love the child and want the trial court to act in the child’s best interest. There was ample evidence presented to the trial court from which it could have found that it was in the child’s best interest to move with the mother to New York. During the time that the child has been in the mother’s custody, the mother has seen to the child’s medical needs and educational needs. There is little evidence that the mother’s devotion to the child’s needs will change after moving to New York. Also, the mother has participated in counseling, along with Dr. Teitel (the mother’s new husband) and the child, to encourage a smooth transition for the child in New York.

The evidence supports the trial court’s determination that the child’s best interest and welfare will not be materially promoted by transferring custody of the child to the father. Ex parte McLendon, supra. There is no doubt that the mother’s move to New York represents a significant transition in the child’s life. However, the benefits the child will receive by moving to New York with the mother, the mother’s role as the child’s primary caregiver, and the mother and Dr. Teitel’s willingness to support a continuing relationship between the father and the child support the trial court’s judgment allowing the mother to move with the child to New York and denying the father’s petition to modify. Therefore, we cannot say that the trial court erred in entering its judgment denying the father’s petition to modify custody.

193 comments

  1. Lee Borden says:

    Unfortunately, I can’t, because it’s almost totally a function of your local court’s docket. In some counties, you’ll get a hearing within 3-4 weeks. In most, it will be more like six. In some counties, maybe eight weeks.

  2. kleon says:

    In February, I notified ex husband, who is ncp, of my intent to move to Santa Barbara, Ca. with my son and husband once school was out. He signed certified letter Feb.23, 2010. Did not file anything with the courts. He did have a lawyer send me a letter threatening to block move but that was all. In July, I received a job offer where I will take home one thousand more dollars every week. This is approx., 50k more than I make here a year. We resigned from our jobs first week in August, boxed up everything, deposit for moving truck, etc. My ex husband takes our child illegally for six days, before I find him enrolled in the school in his district and have police escort me there to get him back. Simultaneously, my attorney is served with emergency hearing papers for Sept. 1st and child is not allowed to leave state until then. My attorney is asking for dismissal, due to fact the move is irreversible at this time and he had over 5 months to file and didn’t. However, Im worried that he wont let us go ahead and move. School starts out there Aug 25th, so now if we get to go he will have to start late. Child is 10. Has a 1/2 brother 2 that lives with us as well. My sister lives out there with her family, son has lived there before, father is a methadone addict on disability, and no ambition in life.Has anger problems, lives with 2 bullriders and one of their girlfriens in a trailer. Why is the judge allowing a hearing this late? My lawyer said according to law my move should be granted? Does this mean we wont get to move? I am offering to work with extended vacations and pay for them, if he will promise not to take son against court orders again and refuse to fly him back.

    Case is being tried in Limestone County by same judge that gave me full custody. Do you think the fact that ex violated our custody orders by refusing to give me son back will make a difference? Also, life in Santa Barbara is much better quality then here. Do you think if the judge was born and raised in Alabama he will understand this?

  3. Lee Borden says:

    I won’t speak to the issues of Dad’s addiction or his keeping your son, because I don’t think I need to. I think your attorney has filed on the correct grounds, namely that the statute gives you a safe harbor and that you are firmly tucked within it. I’d love for you to post here after the hearing to let us know how the judge ruled.

  4. kleon says:

    Thank you for your prompt reply. I will be sure to let you know. Hearing in Sept 1st.

    I don’t understand how the judges think it is in the best interest of the children to stay in the same, small town all their lives, especially when the parent needs to move to get a better job, to provide a better life for their child. Living costs money, and we are a mobile society. There are planes. People who live in the same place all their lives, grow up to be very close-minded, non-cultured people. My dad was military. Im glad we got to move around. It made us more well-rounded, cultured, open-minded people. Yes, he was away a big part of our lives, serving our country, but we never doubted his love for us, and we never felt we were deprived because of this.

    Do you think the fact that I only told ex in my letter he “has 30 days to contest the move per our divorce decree, or the move is granted”, is enough to argue for dismissal after him waiting until the last minute, over 150 days, or did it have to say “you have 30 days to file something in the court”. It seems like the lawyer who served me a threatening letter, but waited so long to file, would have known the law. What Im nervous about, is why is there an emergency hearing this late? Shouldn’t the judge just have dismissed it at this point and allowed the move? My letter did provide all the other required info. It just didn’t specifically state you must file something in the court. However, he has the same copy of the relocation act attached to his divorce papers as I do. Do you think the judge will put him in jail for taking our son and refusing to give hime back? Im the cp.

  5. Lee Borden says:

    I’m beginning to understand now. You sent a notice to Dad, but you didn’t comply with the statute, because the notice was incomplete. In that case, you may very well be reduced to arguing about what is in the child’s best interest.

    For the benefit of those who are reading this with fresh eyes, this is a valuable lesson. When you are ready to relocate COMPLY WITH THE STATUTE. Only when you have sent the statutory notice will you have the safe harbor of the statute’s protection.

  6. kleon says:

    In the Exhibit “B” relocation act attached to our divorce papers it says, unless you are military, “A warning to the non-relocating person that an objection to the relocation must be made within thirty days of receipt of the notice or the relocation will be permitted”, must be included, so that is exactly what I typed in the letter. I was just reading the case on here where the Appeals court made a footnote stating the Father in the case specifically said you must file in court. My papers did not read like that. If anyone is reading, be safe and include the “you must file in court” part. At the bottom of the Exhibit “B” it does tell the non-relocating party if you do not “commence an action” seeking a temporary permanent order to prevent the change of principal residence within 30 days then the move is authorized. I guess that means file in court. My attorney says ignorance does not excuse you, but he seems to think my letter met all the statutes. Even went up to Madison County Courthouse and asked a judge off the record to read both of our letters and if he could tell me to move, and he said yes. Ex filed in Limestone County where our divorce was done. Apparently, they do not see the move as being authorized, five and a half months later, as I’m not allowed to relocate child until hearing. So we are here, jobless, as we await the trial, with everything still boxed up, and now out a couple thousand extra dollars as well.

  7. Worried Aunt says:

    My sister-in-law is going through a bad divorce. Her husband is CP with out court order. She lives on base in a 4 bedroom home. He lives in Limestone county in a very old run down mobile home that is provided by his employer. His family is located in Holly Pond. The kids are twin 16 year old girls and a 11 year old. He adopted the twins when they where little. They have never showed any interest in the kids until the last 4 to 5 mos. My husband and I have been trying to figure out why the sudden interest. He decided that was going to move back to Holly pond with out notifying their mother, she found out and filed to stop the move. At the court hearing we found out why his family was showing recent interest. His brother is slow and has lived with my brother-in-laws parents his whole life. My brother-in-law has went in a nursing home and from my understanding will not ever make it back home. My brother-in-laws lawyer said that he has to move back to take care of him. This man is in his late 50s to 60s and never exposed to young grils 24/7. My brother-in-laws job will remain in Limestone county, he dose not work a 9 to five job, he manages a farm. This move is at least 1 hr away from his work. This would leave the kids to take care of this MAN. The kids have been painted a nice pitcher of living there, so they want to move. I do not see this as a good move for the kids. His lawyer said that he need to move to take care of his brother, from what I see he will not be doing this the kids will. The house his brother lives in is less than a mile from other sisters and brothers which can take care of the brother. My sister-in-law works on base and lives on base. She goes to every sports event she can get to that is after she gets off of work which is no later than 5pm and gets the kids every chance she can. The ruling came out that they can move. This is going to cut the time she can spend with the kids. It was also pretraid to the judge that his brother was not able to take care of himself, He told me the weekend after court that his brother can take care of himself just did not like to sleep in the home alone. He can go to the other brothers or sisters home and sleep at night. This home is a 3 bed room house, where are they going to put 3 kids and 2 adults. The court ruled to allow the move. Is there anything we can do to stop or over turn this ruling?

  8. Lee Borden says:

    If the judge has already ruled, I think the wisest course for Mom is not to fight the ruling but to insist on using all the visitation time available to her. She needs to stay in CLOSE touch with her children. If she simply focuses on them and their welfare without prying into what’s going on at Dad’s house, she’ll eventually get a full report. Then she and the kids can decide together whether to take more aggressive action.

    One proviso, and it’s not good news. I’ve seen several of these “late teen” changes result in the delinquency of the children. They revel in the freedom they experience with the other parent, and even though any fool can see they’re worse off, they cling to the new arrangement because they like being able to go and come without boundaries. I’m sorry to have to say that, but I’ve seen it enough time to mention it to you.

  9. jdssimpala says:

    I have a court case coming up this week. My ex and I were divorced on Nov. 30th 2009 we were married for 25 years, she was remarried May 1 2010 to someone she met in September of 2009. He is from Alabama but has lived in Georgia for the past 17 years. She has lived down here all of her life and never wanted to move, I tried to get her to move over the years because of work opportunities for me, she refused. She dated this guy from Sept 2009 to December 2009 before they were engaged on Dec.26, 2009. After she was engaged I told her immediately that she wasn’t taking him to Georgia without a fight (he is 7). I have extended visitation, every other Wednesday, Friday afterschool till Monday morning or Tuesday if Monday is a holiday. I exercise my visitation religeously and I get extra time for holidays and vacation if vacation doesn’t fall in the month of July for which I have him, (we work together on extra time)I am VERY involved with his extra activities also, baseball, football, Boy Scouts and school functions, It was the same with my oldest son. I never miss child support. In February she petitioned the courts to relocate. There has never been any abuse to her or my children from me (the oldest is married now and out of the hosue)I gave her the house and all the equity approximately $110k to keep my sons life as normal as possible. Now all of a sudden she wants to take him away from me and both sides of the family, there is NO ONE up in Georgia except for her husband (currently they are married and living apart he’s in Georgia she’s in Mobile). In addition, we are both gainfully employed and make a good living. Finances are not an issue.

    What are my chances?

  10. Lee Borden says:

    I’m not good at prognosticating about cases on a message board, so I won’t try. I can say that yours is the case the legislature seems to have had in mind when it approved the relocation statute, namely two parents who both have a meaningful relationship with the child, and a custodial parent who takes the child away from the other parent to pursue a new relationship. Just don’t get overconfident. Be prepared to talk about ALL the child custody factors.

  11. jdssimpala says:

    Follow up question. Section 30-3-169.8 stipulates the the court may award any party necessary and resonable expenses incurred by or on behalf of hte party, including costs, commmunication expenses, attorney’s fees etc…since the statute puts the burden on her to prove the child will be better off away from the rest of his family and she cannot and the judge rules in my favor, do I have a legimate argument to have her reimburse to me my cost including attorney fees and could I be awarded those cost in this court? Especially since I gave her all equity in the marital homeplace. Just curious if anyone has been awarded attorney fee’s in past similar situations.

  12. Lee Borden says:

    My impression is that most judges pay more attention in awarding attorney fees to the financial condition of the parties than to which party had a stronger case. So if your litigating with Mama Warbucks, maybe so. But if your financial condition is the same as or better than Mom’s, I wouldn’t hold out much hope that the judge is going to award you a lawyer’s fee.

  13. jdssimpala says:

    Just to update on my court case concerning relocation, My ex under leagal advice decided to drop her case to relocate before it went to trial. In a nutshell my son’s GAL recommended that my ex not be allowed to take my son to Georgia if she decides to move. Generally the Judges strongly consider what the GAL recommends because they consider the well being of the child. Thank Goodness!!! That being said, it was not a slam dunk, I am very active in my son’s life as I was with my oldest son, baseball, football, hunting you name it we did it together, we have a very strong extended family foundation to boot. My family and hers are active in my son’s life. I documented and recorded every day that I spent with him, standard visitation and any extended visitation outside of standard. My standard visitation is Friday through Monday and every other Wednesday, I pick him up from school on Friday and I take him to school on Monday. This is something I fought for in the beginning and Thank God I did! I also documented any extra curicular activities that I attended, school functions, award ceremonies, Boy Scouts etc… My best advice for anyone in a similar situation is to stay active in your childs life and document every little thing no mater how insignificant it may seem at the time. Right now life is good, I still document everything I do with my son, out of habit and just in case she tries to do this again. Always remember “Fathers have rights too” Good luck to all in a similar situation.

  14. kristina says:

    Hi, I currently live in Alabama. my husband moved me and our four children out here for his job 2 years ago. We are going through a divorce and I want to reloctae to either Georgia or Tennessee. My reason for this is I abdolutely have no one here, no one to help with the kids, no job no family. I have been a stay home mom for our whole 12 year marriage and I know I will need to get a job or go back to school, which will be impossible without help from friends or family. My sister lives in Tenn and my best friend in Georgia. I would love to back to Ca. as that is where all my family is but I dont want to take the kids that far from their dad. Do have a chance of getting the judge to allow me to relocate because I know my soon to be ex husband will fight it. Thank you.

  15. Lee Borden says:

    Certainly you have a chance. Just know that, in the absence of domestic violence, you’ll have to show the judge enough evidence to overcome the presumption the judge is required to make that the move is not in the children’s best interest.

  16. kleon says:

    We received ruling from Alabama Appeals court for mediation in our relocation case. Has anyone ever heard of this? I don’t really understand how my ex (ncp) is going to mediate when he is objecting to me moving out of state to begin with. Initially, our case went before Limestone County Judge, after my ex waited 5 months to contest my move and we were all packed and ready to leave. The judge agreed to an emergency hearing. He used the clause of the relocation act that says something to the extent that you have 30 days to contest or the move is granted, OR unless the judge finds reasonable cause, so he felt like there was reasonable cause as my ex said he thought we had changed our minds and didn’t want to move, when in reality, I kept thinking he had contested and was waiting to hear something from the court. My attorney appealed it, so the Limestone County Judge threw out case for final hearing. Now we have to meet with an attorney in Athens who is a mediator. It seems like this is a waste of time and money when I know my ex is not going to agree with the move. Has anyone else had to do this? It doesn’t seem right to have to pay this money (I’m sure my ex will get out of paying by claiming he’s “Disabled”) when he’s not going to compromise.

  17. Lee Borden says:

    My suggestion is to go to the mediation prepared to describe all the ways you are willing to help keep this move from disrupting the relationship between Dad and the children (video chats, visitation, phone calls, etc.).

  18. jdssimpala says:

    My ex wife lost her case to relocate to Georgia now, she is planning on moving away to another county, she will be withing the 60 miles of relocation. However, she will be approximately 50 miles away. Since she is moving away from me, I now live within 5 miles of her residence (my former residence), will she be responsible for getting my son to me on my visitation days, e.g. on my Wednesday’s and on my Friday’s or am I going to have to incur the burden of picking him up on my day’s and retuning him on my dime? Just curious.

  19. Lee Borden says:

    You should ask around to see how your judge normally approaches this. My experience would indicate that transportation will be your responsibility but that if you have extraordinary travel expenses for visitation you can ask the judge to adjust child support to compensate you.

  20. LSchoen says:

    My husband was notified by his ex in April of this year of her intent to move. We contacted our lawyer and she filed an Emergency Motion for a Stay and A Motion for modication of custody. The judge granted the motion for a stay until the court case is heard, however, the ex’s lawyer is arguing that we did not file ” an objection to the relocation”
    We have been to court once and the judge wanted to hear testimony before she rules on “burden”… She heard two hours of the ex LYING on the stand and then sent the case out for mediation. We have 9yrs worth of documentation of the ex not following court ordered visiation guidelines and the child has expressed his desire to live with his father ( he is 12)
    could we loose basesd on a tecnicality, because our lawyer did not file “an objection to relocation” even though we filed the emergency stay and the motion to modify custody… ARE THOSE OBJECTIONS??

  21. Lee Borden says:

    I would be surprised if your judge rejects your filing on those grounds. Stranger things have happened, but not many. If I were you, I would proceed as if you’re going to be heard on the merits.

  22. Mary says:

    I have a situation where I am the custodial parent. When my ex husband and I divorced in 2006, I was granted full custody of our 5 minor children. In 2008, i remarried. That same year, my only sister moved to NE Mississippi. At the time, my ex husb had not been seeing our children and exercising his visitation rights. He had very little contact/interaction with them. He was not paying child support but was making the house payment on the house we had lived in instead.
    When we wanted to move to MS, we followed the book as far as notifying him, securing jobs, buying a home, etc. Two days before we were to leave, he filed an injunction with the court preventing me from leaving. We went to court and I lost. In addition, the judge stated I was to remain in the county we lived in. Fast forward to 2011. I received a notice of foreclosure on the home. Apparently he hasnt been making payments for almost two years while applying for the Obama-homeowner-rescue program. He has been turned down a half dozen times. In essence, he hasnt kept up his child support obligations by not paying the house pmt.
    My question is this…am I still bound to the judges ruling? The home will go up for foreclosure sale at the end of this month. Im expecting an evicition notice soon after. My sister has offered us her house in NE Mississippi, rent free since they have moved and the house is empty. Our youngest child will turn 12 in a couple of months. Will the court recognize his opinion (all the kids want to move). Their dad only sees them sporadically and never overnight. What should I do and where should I start?

  23. Lee Borden says:

    My guess is that it’s unlikely this will change the ruling on your relocation, although having your house foreclosed upon certainly gives you another reason to overcome the presumption against relocation. Consider simply asking for back child support. You may find that number to be massive by this time, and it would certainly give you some bargaining power with Dad.

  24. mamainal says:

    Lee, I am writing because of my ex. We have been divorced for over a year. I live in Russell County which is on the border of AL/GA. I work, go to church, and my daughter goes to school in GA. At the time of the divorce, I stayed in AL only because my daughter went to daycare in AL. But, she now attends daycare near my job in GA. I gave notice of my intended move to GA. My ex have filed motions to halt the relocation. The move will only be 15 miles, still in the same metroplitan area, but across state lines. I have agreed to meet him halfway for dropoff and pickup. The move will not change his current visitation schedule which is every other saturday and sunday from 8am-6pm, no overnights. DO you think he has any ground to stand on? Thanks so much!

  25. Lee Borden says:

    Certainly. He has the presumption in his favor. Yes, you can argue that this move really won’t disadvantage Dad, your child, or their relationship, but the statute says what it says. What I would hope you have going for you is that your judge is in Russell County, so he or she probably deals every day with situations where people live in one state and live in another, or where children are crossing the state line to attend school or to go to church.

  26. afpunk says:

    Lee I realize this is a AL posting but I have question that I can not find anything on. My Finance is Fl she requested Relocation for kids from her everything already has gone to court but it has been almost 60 days and the judge has not made a ruling, do you know how long he has to make one? Is there anything we can do to speed up the process?

  27. brina says:

    If my divorce was final in June 2003 and the new Alabama child protection law came into effect Sept 2003. Does this law affect me?

  28. Lee Borden says:

    When you say the “Alabama child protection law,” I think you’re asking about what I know as the relocation statute, with the formal title “Alabama Parent Child Relationship Protection Act,” which did indeed become effective September 1, 2003. If so, yes, the act applies to all relocations occurring on or after that date, regardless of when the divorce occurred.

  29. brina says:

    Thank you. The state of Alabama moved me to another state from protection of domestic abuse.
    My husband has a new job overseas. My child is 16. We have been back in Alabama for a year with no contact with her dad. He lives 10 miles from is. Do you think a judge is going to let us move?

  30. Lee Borden says:

    I can’t say, of course, because I don’t know the facts of your case. I can say, for what it’s worth, that the presence of domestic violence does away with the presumption that a move is not in the best interests of the child.

  31. brina says:

    Thank you for your blog. You have helped me out alot. I will keep you posted about what happens.

  32. April says:

    I just came across your blog. My fiance and children are relocating to In. my youngest childs father after I sent him a cert letter as instructed has filed with the court to contest the move. We have always had a pretty good relationship. I have always made sure he had extra visitation and he has always been a good dad . I have moved a few times since our divorce but so has he. We have been living in a travel trailer for several months with plans of
    building a house. My future mother n law has offered her house to us at a great deal in In. The school system is better and we both potentially can make more money. The only family here is the ncp and my mother. Her siblings the ones that arent already grown will be going with us. That is his main argument that I am taking her away from family. And that I havent provided stability. He has never complained til now and I have always met her needs. She is only five years old and in kindergarden. He is also active miltary and can be deployed any time. Do u think he will win and how long do you think it will take?

  33. Lee Borden says:

    April, you ask two great questions, but I’m not able to answer either one. As you probably already know, your task will be to overcome the statutory presumption that this move is not in the best interests of the children. That’s not an impossible task, but it is difficult. I would look (quickly) for someone who has experience litigating relocation cases before this judge. They will do a much better job answering your questions than I would.

  34. Does this statute prevent someone with custody who was allowed to move from Alabama to Florida from Domesticating the Final Judgment in Florida making it a Florida order. I have a client who wants to Doesticate the Final Judgment of Dissolution of Marriage in Florida. Several attorneys have told her Alabama law prevents that from happening. I am not sure from reading the statute they referred me to. Any guidance would be appreciated.

  35. Lee Borden says:

    You can record the judgment in Florida and enforce it there, but the case will still be subject to Alabama law, and Alabama will retain continuing and exclusive jurisdiction as long as the child or either parent continues to reside in Alabama.

  36. dadinal says:

    How is child support affected when ex moves several (10) hours away with kids? We are negotiating new visitation schedule now as well as considering modification of child support. Should my support payment be offset by cost of transportation to see kids?

  37. CH84 says:

    I am in the process of petioning a move of the CP. Is there a way to file the motion without using a lawyer? Like most, I work full time and support my family. Money isn’t exactly flowing freely these days. I am prepareds to pay the 350$ filing fee for my county. I just don’t have the thousands in retainer fees at the moment. I was granted joint custody in our original divorce decree and the CP has only notified me via text message of the move. I know that the CP has to do so via certified mail 45 days proir to the move. and I then have 30 to petition I just want to be ahead of the game, any info or advice will be appreciated

  38. Lee Borden says:

    Sure. You can file anything without a lawyer. Just be aware that if the other parent has a lawyer and you don’t, you’ll be at a disadvantage. You can always decide later, though, to hire a lawyer.

  39. CH84 says:

    Any advice as to where to start? The local courthouse isn’t being much help. I have contacted them several times and the answer I get is ” We’re not attorneys, therefore we cannot give legal advice. If you don’t know how to file the motion already you’ll have to employ a lawyer”. I have searched the internet and have not found any conclusive answers.

    I just can’t financially afford a retainer fee at this point. But in the weeks to come I can save and have enough before the court date. I just need to get the ball rolling with what resources I currently have. I represented myself through the divorce process and faired pretty well. But this is not something I am willing to fight alone. I only get one chance at this.

  40. Jeanette Davis says:

    My son has been given full temporary custody of his three daughters. The stipulation being that he has to move to Elberta, Alabama so the children can stay in the Elberta school district. We have spent the last three months trying to find a rental apartment or house in this small town, and there is nothing! My son currently lives and works in Pensacola, Florida. If he could find a place in Elberta, it would cause a hardship on him because he would have to leave his job early every day in order to pick the kids up from after school by 5:30. It is approximately an hours drive. My son wants to move the children to Pensacola to go to school. If he is late getting off work, I can pick them up from after school care, if they are in Pensacola. The children in schoool are 11 and 7. There is also a 2 year old child.

    The children are now in the care of their mother who has a history of drug abuse. Her boyfriend is felon who recently got out of prison for making Crystal Meth. The mother was court ordered to take parenting classes, have a hair follicle drug test, and a psycological test back in February. She did not do any of these things. When they went back to court yesterday (May 7th) the judge gave her another chance and posponed the court date to July 2nd. She is mad at my son for having to do this and will not let him talk to his children or see them. She does this every time they go to court, until she gets tired of the game, and my son is constantly stressed because he doesn’t know what is going on with the kids. She also fills their heads with lies about their dad not wanting to see them. The 7 year old missed 19 days of school in two months and the 11 year old is failing classes now that her dad is not home. The mother does not work and expects my son to pay for everything.

    The judge does not seem to see the things that are happening. I know her job is to look after the best interest of the children, but in this case, she is not doing so.

    Can you give me some advice as to how he can get the judge to move the children to Pensacola. They have only lived in Elberta Al. 21/2 years.

  41. Lee Borden says:

    I don’t know what to tell you. From my perspective, the best choice for your son is to bite the bullet and move so he can have the children live with him. The rest of the problems you describe. while significant, seem to me to pale in comparison to the importance of the living arrangement.

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