Your Day in Court: What Evidence Should You Show?

You’ve decided you are relocating and you want to take the kids with you.  Or perhaps your ex has said they are relocating and want to take the kids with them.

You and your ex have tried to work it out on your own.  You’ve tried to reach an agreement outside of court.  Maybe you’ve even utilized a mediator to help you and your ex reach a resolution.  But there has been no agreement.

One of you has filed a motion to modify the custody order.  Or, if you have a separation agreement, one of you has filed a custody action.

Now the court date for the hearing is quickly approaching.  At the hearing, the judge will determine if your current custody arrangement should be modified.  And if so, the judge will create a new custody schedule.

What evidence do you need to show in court to strengthen your argument that the current custody arrangement should or should not be modified?

Evidence the Judge Wants to Hear

The judge wants to hear all the evidence that shows what is in the best interest of the child.  He or she will want to know if the relocation and subsequent modification will benefit the child or will negatively impact the child.

When the judge hears evidence, he or she must apply the law to the facts specific to your case to determine if a substantial change in circumstances has occurred.  And if so, whether or not the change is beneficial to to the child.

Factors the Judge Considers

In making his or her determination, the judge will consider many factors, including:

  1. Why one parent is wanting to relocate;
  2. The likelihood that a new custodial schedule can be created to maintain the parent-child relationship with the noncustodial parent;
  3. The willingness of the moving parent to comply with visitation periods for the noncustodial parent;
  4. Schooling options and living arrangements for the children; and
  5. The benefits to the children’s welfare.

Overall, the judge needs to know the impact of the relocation and modification on the child.

If you are the parent in support of the relocation and modification, then you will want to show that a substantial change in circumstances will be beneficial to your kids and that the relocation would help them flourish in all areas.

If you are the parent against the relocation and modification, then you will want to show that a relocation would not be beneficial to your kids and that it would be to their detriment.

Why is One Parenting Relocating?

The judge in a modification hearing will want to know why one parent is wanting to relocate.  Does the moving parent have good or bad motives?

A parent with good motives to relocate will be able to argue that their move will help the kids flouish.

The moving parent may have a new job that will require them to travel less and be at home more, or will have increased pay.  Or perhaps the moving parent is relocating to be closer to family or to remove themselves and the children from domestic violence.

These reasons can all be argued to have a benefit to the children.  The relocation would be a direct link to the benefits.

In contrast, a parent moving only because he or she has remarried and wants to be closer to their new spouse might not be a good motive to move.  Depending on the exact circumstances, the move could be considered for the benefit of the parent instead of the child.

Can the Parent-Child Relationship be Maintained?

The judge will want to explore whether or not a new custody arrangement can be developed that will maintain and promote the parent-child relationship with the noncustodial parent.

It is very important that children have relationships with both of their parents.  One parent moving far away will inherently make the other parent a noncustodial parent.

However, the judge will want to make sure the children will still have that important parent-child relationship with the parent that lives far away.

The distance between the parents, the parents’ work schedules, accessibility to airports or train stations, and the children’s schedules, are all considered in the ability to create a new custodial schedule.

For example, if the distance is great enough to require air travel, then every other weekend with the noncustodial parent might not be feasible.  Or if the noncustodial parent has the ability to take vacation time from work in the summer, then the children could reside with the noncustodial parent during their summer breaks from school.

Additionally, the judge will want to consider whether the moving parent will likely encourage or hinder the parent-child relationship with the noncustodial parent.  A parent intending to relocate with the children that has a plan for keeping the children in touch with the other parent may be viewed more positively then a parent that has no such plan or ideas.

Is the Moving Parent Willing to Comply with a New Visitation Schedule?

Another consideration for the judge is whether or not the moving parent is willing to comply with a new long-distance visitation schedule.  This is particularly important in an out-of-state relocation since the moving parent will no longer be under North Carolina jurisdiction.

It is vital for children to maintain the parental bond they have already developed with the other parent.  Having communication and contact with the noncustodial parent cut off can have lifelong detrimental effects on children.  A parent that is unwilling to follow through with a new custodial schedule can end up damaging a well-established parent-child relationship.

Therefore, a custodial parent that is not willing and able to comply with a long-distance visitation schedule will not make a relocation beneficial to the children.  But a relocation can be beneficial to the children when the custodial parent is willing and able to comply with new long-distance schedule.

What are the New Schooling Options and Living Arrangements?

Important in initial custody determinations as well as relocations and modifications are the schooling options and living arrangements for the children.

Like an initial custody determination, modifying a custody schedule must be done in the children’s best interest.  Where children attend school and their living arrangements at home are very important factors in children’s lives and their wellbeing.

A judge will be interested in learning about the schools that the children currently attend versus what they would attend if they where to relocate.  Specifically of interest will be the quality of schools and the quality of the school districts, and the comparison between the two.

The living arrangements for the children will also be important.  For example, whether or not the children will have their own bedrooms, have to share rooms, etc. if they were to relocate versus the arrangements they have now.

A relocation that improves or maintains the schooling options and living arrangements for the children will help show that the relocation is to the children’s benefit.

Is the Relocation Beneficial to the Children’s Welfare?

Overall, probably the most important factor in a custody modification case is whether or not the modification is beneficial to the children.

As mentioned in earlier chapters, there must be a substantial change in circumstances in order to modify a custody order.  If there is, then the judge will want to make sure the modification will be in the best interests of the children.

When there is a relocation involved, the judge will want to assess whether or not the relocation can improve the lives of the children.  A judge will examine if the the relocation can help the children flourish academically, socially, and culturally.

If the relocation cannot improve the lives of the children or cannot help them flourish, then modifying the custody arrangement may not be beneficial and and may not be in the children’s best interests.

Evidence the Judge Does Not Want to Hear

You now know what evidence you should show in court to support your position of whether or not there should be a relocation and modification.  You know what the judge will consider as relative evidence.  But what evidence will the judge likely not consider relevant?

The judge does not want to hear evidence of what is best for a parent, nor does the judge want to hear of speculation of a negative change.

What is Best for a Parent – Do Not Need to Show

The best interest of a parent or the best option for a parent in a relocation matter is unimportant to the judge.  The best interest of the children is always the standard.

Just because a parent wanting to relocate is doing so for great reasons, such as taking a job with a higher salary or leaving a domestic violence situation, it is not enough to succeed in a modification hearing.  The judge wants to know how these reasons will impact the children and whether or not these reasons will benefit them and help them flourish.

Speculation of a Negative Change – Do Not Need to Show

Also unimportant to a judge is speculation of a negative or detrimental change to a child because of a relocation and modification.

A negative or detrimental change that might happen to the child sometime in the future is not enough to have a custody schedule modified.  Especially if the negative or detrimental change is merely speculative.

For example, merely showing that a relocation could negatively affect a child’s relationship with the noncustodial parent is not enough.  The judge must also be shown the impact to the child of the negatively affected child-parent relationship.  Has the child already exhibited signs of separation anxiety?  Is the child very attached to the parent that would end up being the noncustodial parent?

The Key Evidence to Present

As discussed, evidence that the children will benefit and flourish from a relocation will better support a modification.  Likewise, evidence that a relocation would be detrimental to the children will better support an argument against modification.

So, the key evidence you can present at a custody modification hearing is anything other than mere speculation that shows the impact of a relocation and modification to the child.

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