You have just finalized your divorce and are making many life decisions in a short period of time. You might be considering moving for a new job, to be near family, or maybe moving for a new relationship. But, if you have children, relocating can be complicated.
North Carolina laws require that a custodial parent have permission from either the court or the other parent to move. In order to get permission to move, the factors that will be considered are: location of new residence; reason for the relocation; and if the move would be in your child’s best interest.
Are there Moving Restrictions if I have Primary Custody?
Just because a parent has primary custody of their child does not give the parent the right to move with the child. The first thing you need to do is review your custody order for any restrictions on moving, including both in-state and out-of-state moves. A custody order can be written where it prevents the primary custodian from moving with the child out of state or within a certain mileage. Relocation restrictions are typically negotiated during the divorce.
If your custody order or separation agreement does not address travel limitations, you will still need to be careful. If you move your child to another state without the other parent’s consent or consent of the court, it could be held against you in future hearings. If you take the child without permission, it could result in the other parent getting emergency custody of the child and the child being brought back to North Carolina.
The location of the new home makes a difference in how easy it is to get permission. If you are just asking to move within the same town or nearby town, it will be easier even without permission. If you are moving across the state or out of state, it is important to get written consent from your ex or the court.
It is important to remember that sole or joint custody do not have any specific meaning within the North Carolina courts. The definition of those terms comes from what is written in the custody order.
Notification or Permission Needed to Move?
If you do not currently have a child custody order in place, there are legal risks to relocating. The first thing to understand is “home state.” The home state is where your child and you have lived for at least the previous six months. North Carolina would be considered you and your child’s home state. The home state does not change as soon as you move to another state. North Carolina would remain the home state even after the move.
The first risk to moving out of state is that your ex could file a custody action in North Carolina and ask that the child be returned to the state. Additionally, you would need to appear in court in North Carolina, which could be difficult depending upon where you move. Another risk is that your ex could use the move against you in any future court hearings if you did not consult and get permission.
If you do currently have a child custody order in place, you will still want to file a court action notifying everyone that you intend to move and ask for the hearing to be expedited. If your move is for the best interest of your child, it looks favorable that you are asking the court’s permission prior to the move. In contrast, if you move without filing an action to ask the court, the court could possibly order you to return to the state for a court hearing.
If your custody order does not allow a move outside of North Carolina with your child, moving without a change to the custody order would be a violation of the law. Possible ramifications would be court imposed penalties; contempt; demand to have the child return; or even court costs and attorney’s fees to be paid.
Is Court Approval Required to Move?
The parent that has been determined to be best able to meet the needs of the child on a daily basis is usually the parent with physical custody. One of the benefits to being the parent with physical custody is that you have the right to pick where the child lives. This also means that the court typically assumes that a move initiated by the parent with physical custody is in the child’s best interest. The burden shifts to the other parent, the non-custodial parent, to prove to the court that the move is a substantial change of circumstances, that the move would be harmful to the child, and that the move is not in the child’s best interest.
When considering relocation, you need to carefully think about the best interest of your child. You will need to review your separation agreement to see if there are restrictions for relocation. Then, check to see if the order lists any constraints, like no moving out of the state, abroad, or out of a specific county. Next, discuss the move with the other parent prior to the move. If they agree to your relocation, have them sign a written agreement.
You might have to file for a modification of your current separation or visitation agreements depending on how those documents are written. If you need to go to court to ask for a modification, you need to be prepared. This would include listing your reasons why the move would be in your child’s best interest. Anytime you go in front of the judge, your child’s best interest will be of utmost importance to the court.
Visitation after a Move
Whenever there is a substantial change in the circumstances that will affect the best interest of the child, the court will modify custody and visitation orders. If it is the custodial parent that moves with the child, the other parent can ask the court to modify their visitation rights.
If the court modifies a custody/visitation order due to a parent violating the current order, the court is modifying the order to promote the best interest of the child, not to punish the parent. The parent who is the custodial parent should take great care to never violate court-ordered visitation. If the visitation order is violated, the court’s usual action is to find that parent in contempt, but the court will not automatically modify the order.
When two parents share custody, the assumption is that both parents will want to have access to all of the child’s medical records. Unless the court orders differently, both of the child’s parents are entitled to all health, education, and welfare records for the child.
Best Interest of Child and Moving
Moving or relocating must be in the child’s best interest. If custody and moving needs to be decided by the courts, the judge makes his decision based on the best interest of the child.
North Carolina courts look at the following factors when making a determination in regards to best interest of a child:
- What are the advantages of relocation in regard to the possibility of improvement to the life of the child?;
- What are the motives of the move for the custodial parent?;
- Is it likely that the custodial parent will comply with visitation orders after they leave North Carolina?;
- The likelihood of the non-custodial parent in resisting the relocation;
- The likelihood that a realistic visitation schedule can be arranged to preserve and support the relationship with the non-custodial parent.
Proving that Moving is in the Child’s Best Interest
When you are trying to prove that moving is in the best interest of your child, the factors listed above are what will be important to show the courts. You will need to present evidence showing that moving will not only benefit the child but that the benefits outweigh any costs of moving. You will want to bring evidence that shows:
- Mental health of both parents;
- Physical health of both parents;
- Each person’s capabilities to parent;
- What each person has done to date in caring for the child;
- What the child’s relationship is like with both parents;
- Time each parent has to spend with their child.
You might be able to show that by moving, your circumstances are improving by being closer to their family, better schools, or even better programs if the child has special needs. Some other things to show the court include:
- Prior abuse and neglect by the other parent;
- Drug use or alcohol problems;
- Willingness of both parents to keep the other parent in the child’s life and allow continued and on-going contact;
- Any relationships either parent is having, including non-marital sexual relationships.
Usually, if domestic violence is involved in the relationship between the parents, the custodial parent is able to take the child and move immediately.
Green v Kelischek
This is a 2014 case is from Asheville. The mother and father divorced and shared custody of their son. The mother remarried and wanted to move to Oregon with her son and new husband.
During the separation, the mother and her ex-husband both agreed that neither could move outside of the state and no more than 125 miles out of the county unless they got permission from the other parent. If the other parent would not give permission, permission could be granted by the court. The ex-husband would not give permission for his child to move out of state so the mother asked the court for permission to move.
During the custody trial, the court agreed to a change in the current custody order but would not allow the mother to relocate to Oregon with her son. The court did not think the move would be in the best interest of the child because:
- The son had a close and loving relationship with his father;
- The child had no extended family in Oregon;
- The child had a large extended family in North Carolina;
- The child participated in activities unique to North Carolina and his community;
- The dad had a long-term, steady job and a stable living situation;
- Traveling between North Carolina and Oregon would be difficult to allow for visitation and would interrupt the child’s schooling and extracurricular activities.
The mother’s argument in court was that having to stay in North Carolina would be a huge burden on the marriage. The court agreed that there were a few benefits to the child moving to Oregon but felt that the mother was only looking out for her best interest, so the court ruled that the child could not move to Oregon. The custody order was changed where the child would remain in North Carolina with his father during the school year if the mother chose to move to Oregon.