Not saying he should 'have' to do it, but I think 40 minutes drive is piddly and not too far to restrict 50/50 custody.
You make it work because they are your kids.
I'd be going to court to get rights in schooling choices etc... cemented so in future this doesn't happen again.
I've just had a cousin move his ex and her child to Australia, set them up with a home, car etc... as he had to come here to get access to his second child and couldn't make the hard choice between his two kids. My point? If you want it, you make it happen.