Moving away after your divorce can be a difficult decision. Starting a new job, being closer to your family, or beginning a life with your new spouse are some of the reasons you may want to move. Relocating your children after a divorce can make the move more complicated.
North Carolina family law applies in different ways depending on who has custody of your child. As the custodial parent, you may have to get permission from your ex-spouse or the court even though you have custody of your child. Your ability to move will depend on where you are relocating, your reason for moving, and whether the move is in the best interest of your child.
What are the restrictions for moving when I have primary physical custody?
Check your separation agreement or child custody order for any travel restriction on either parent’s ability to move the child. In your custody order, look for specific geographic limits. Some custody orders prevent the custodial parent from moving the child out of state or a certain number of miles away. Travel restrictions are usually worked out during the divorce process.
If your separation agreement or custody order do not place limits on travelling, you should still use caution. Moving children without the consent of the other party or the permission of the Court can prove damaging in any later child custody proceeding. Sometimes, this can result in the other parent obtaining an emergency custody order resulting in your child being forcibly returned to North Carolina.
Location plays an important role when moving your kid. Relocating neighborhoods within the same town or a nearby county will be easier than moving across the country. If you are considering moving across North Carolina or out of state, you may have to obtain written permission from your ex-spouse or even the court.
Keep in mind that the terms “sole custody” and “joint custody” have no special meaning in North Carolina except the meaning you give them in an agreement or the meaning a judge gives these terms in a court order. Your separation agreement or custody order define what is meant by both custody terms.
Do I have to notify my ex-spouse or get permission to move?
This answer depends on whether you already have a child custody order.
No, I Do Not Have a Child Custody Order
If you do not have a child custody order, moving out of state becomes a more complex issue. While there is no court order in place, you may run into legal risks if you relocate. Before you move, assume that you and your child spent at least the past six months in North Carolina. Then, North Carolina would be considered the home state of your kids for purposes of deciding issues of custody.
In this case, even if you leave the state without a court order in place, your spouse could file a court action in North Carolina and request you bring the child back. Additionally, your attempt to move the kids out of their home state without consulting your ex-spouse could be held against you in a future custody case.
Even if you do have an order in place, you should still file a child custody action stating your intent to move. When you file this new action, you can also request an expedited hearing to determine whether you can relocate. Assuming you are moving in the best interest of the child, then you put yourself in a better position by asking the court before you relocate. If you simply move without asking the court, you run the risk of the court demanding that you come back for a hearing.
Yes, I Have a Child Custody Order
Assume that this child custody order prevents you from moving out of North Carolina with your child. If you move without modifying the custody order, then you would be violating the law. This would subject you to court imposed penalties, including contempt, an order to return the child, and possibly paying court costs or attorneys fees.
Do I need court approval to move when I have physical custody of the children?
The parent with physical custody is considered the parent best able to meet the daily needs of the child. Physical custody includes the right to determine where the child lives. If the custodial parent decides to move with the child, a court will generally assume that the move is in the child’s best interest.
The burden is on the non-custodial parent to prove that the move is a substantial change of circumstances and that it is harmful to the child.
Child Custody Relocation Checklist
- Carefully consider what is in the best interest of your child.
- Check your separation agreement for any mention of relocation.
- Check your custody order for geographic constraints (such as no moving out of state, abroad, or out of a particular county).
- If possible, talk to the other biological parent before moving.
- Make sure that any agreement between you and your ex-spouse is in writing.
- Depending on what is in your separation agreement after your divorce, you may have to file a modification of a separation agreement or modification of visitation rights.
- Prepare to list several reasons that justify why moving is in the best interest of your child. If you argue your custody case before a court, the best interest of your child will be very important.
Visitation of the Non-Custodial Parent after Moving
The court modifies custody or visitation rights because substantial changes in circumstances have changed what is in the best interest of the child. After the custodial parent moves the child, the non-custodial parent can file an application to modify the visitation rights.
When a court modifies a custody order or visitation rights because one parent has violated the order, it is generally not done to punish the parent. Instead, a modification is done for the best interest of the child. The custodial parent should never violate the visitation order. If a violation does occur, however, then the usual response is a finding of contempt and not an automatic modification.
Similar to visitation rights, both parents may want access to the child’s medical records. Unless the court says so, each parent shall have equal access to the child’s records involving the health, education, and welfare of the child.
Stopping the Custodial Parent from Moving Children
If you are trying to stop the custodial parent from relocating, consider modifying your custody order. Child custody orders are usually modified either when a parent has violated a court order or when one or both parents allege changed circumstances. The burden is on you to present evidence that the modification is justified.
Keep in mind that North Carolina family law says a parent cannot take the child out of state with the intent to violate a court order.
Moving Must be In the Best Interest of the Child
If the issue of child custody reaches a court, the judge will make a decision based on the best interest of the child. There are several factors considered by judges in determining the best interest of a child.
Factors to Consider
Based on recent North Carolina custody cases, a court will consider the following factors to determine the best interest of the child:
- Advantages of the relocation in terms of its capacity to improve the life of the child;
- Motives of the custodial parent in seeking the move;
- Likelihood that the custodial parent will comply with visitation orders after he or she has left North Carolina;
- Integrity of the non-custodial parent in resisting the relocation; and
- Likelihood that a realistic visitation schedule can be arranged that will preserve and foster the parental relationship with the noncustodial parent.
How to “Prove” Moving is in the Best Interest of the Child
Proving that moving is in the best interest of the child will depend on the factors listed above. When possible, you should present evidence that shows how moving will benefit the child and outweigh the costs of relocating.
Show evidence detailing the mental and physical well-being of each parent, each parent’s caretaking capacities, the role of each parent thus far in taking care of the child, the child’s relationship to each parent, and the time that each parent has available to spend with the child.
You can also try to show the better environment you can create for the child by moving away, such as moving to be closer to extended family or better schools.
Other factors to show that moving will be in the best interest of your child include:
- prior bad acts of the other parent (such as abuse and neglect);
- drug or alcohol problems;
- religious factors;
- the willingness of each parent to keep the other parent involved in the child’s life and to facilitate the other parent’s access to the child; and
- the other parent’s adult relationships including non-marital sexual relations.
Additionally, a parent is generally allowed to take their child and move immediately to a new location if domestic violence is involved.
2014 North Carolina Case
In a 2014 case from Asheville, a mother who shares custody of her son with her ex-husband remarried a man living in Oregon. The mother wanted to move to Oregon with her son and start a new family with her second husband.
In the separation agreement, the mother and her ex-husband agreed to a provision that limited where each parent could move. Neither parent could move outside of North Carolina or more than 125 miles out of the county without first getting permission from the other parent or from the court. The ex-husband did not approve of the mother’s plans to move to Oregon. Since she did not get his approval, she then asked the court to approve her relocation.
The trial court found that the mother’s new marriage and intended relocation warranted a change in the custody order but did not approve her move to Oregon. The court determined that the cross-country move would not be in the child’s best interest based on the following factors:
- Father and son had a close and loving relationship.
- Child had no extended family in Oregon but a large family in North Carolina.
- Child participated in many enriching activities unique to his community.
- Father had a steady job and provided a stable living situation.
- Travel between North Carolina and Oregon for visitation with the father would be unnecessarily difficult and interrupt the child’s schooling and social life.
The mother argued that not being allowed to move would place a heavy burden on her new marriage. While the court found that moving to Oregon had some benefits for the child, it concluded that the mother was acting for her own benefit and not in the best interest of the child. The mother lost the case.
The court modified the custody order so the ex-husband had custody of the child during the school year if the mother moved to Oregon.
Green v. Kelischek, 759 S.E.2d 106 (May 20, 2014).
Make sure you take every precaution before moving out of town with your child. While moving may be a wise decision for you, carefully consider the best interest of your child.