So far, we’ve discussed parents relocating and taking their children with them because of new and (mostly) positive changes. Perhaps they’ve been offered an exciting new job, they’ve remarried and started a new relationship, or they want to be closer to beloved family members. But sometimes parents feel they must leave their current surroundings to be safe from domestic violence.
Whether it’s an ex-spouse, a new spouse, or a live-in significant other, domestic violence can be a serious and scary issue, especially when children are involved.
All too often, the only way that victims can protect themselves and their children is to relocate. In some cases, that might mean relocating far away from the abuser. But this can be easier said than done when a child custody schedule is in place.
In this chapter, we’ll consider two examples of domestic violence where there is a substantial change in circumstances allowing a custody schedule to be modified.
But first, let’s make sure we’re all on the same page.
What Is Domestic Violence?
Two legal requirements define domestic violence under North Carolina law. First, an aggressor must commit a specific violent act against a victim. Second, the aggressor must have a personal relationship with the victim.
ACTS OF DOMESTIC VIOLENCE
North Carolina law specifies what acts constitute domestic violence. These acts are broader than the generic example of a husband beating up his wife.
Acts of domestic violence must involve one or more of the following:
- attempting to cause bodily injury,
- intentionally causing bodily injury,
- placing the victim or a member of the victim’s family or household in fear of imminent serious bodily injury,
- causing the victim or a member of the victim’s family or household to fear continued harassment,
- causing substantial emotional distress, or
- committing an illegal sex offense.
Actions that a victim takes in self-defense do not qualify as acts of domestic violence.
WITHIN A PERSONAL RELATIONSHIP
There must be or have been a personal relationship between the person committing the act or acts of domestic violence and the victim. Domestic violence also includes the above acts if they are inflicted on a minor child in the victim’s custody.
Two people have a qualifying personal relationship if they meet any of the following criteria:
- they are or were married,
- they have a child or children together,
- they’re child and parent or someone acting as a parent,
- they live together or have lived together in the same household, or
- they are or have been dating, so long as they are of opposite sexes.
If an aggressor commits an act of domestic violence against a victim with whom he or she has a qualifying personal relationship, the victim is entitled to a domestic violence protective order against the aggressor.
A domestic violence order can address issues of custody as they relate to the acts of domestic violence, but a standard custody order supersedes any custodial terms in a domestic violence protective order.
An Example of Domestic Violence Involving Bodily Injury
Carl and Cathy met online. When they met, Carl lived in North Carolina, and Cathy lived in New Jersey. Their relationship evolved, and eventually Cathy left her hometown and her family and moved to North Carolina to be with Carl.
The two never married, but they had three children together. Once they broke up, Cathy filed an action asking the court to resolve custody. They now have a child custody court order in place dictating that they share custody. Carl and Cathy live about 45 minutes away from each other.
Because they have three children together, Carl and Cathy have to communicate quite often. Carl has always had an aggressive personality; however, his attitude and demeanor have changed for the worse over the years. Now, he is often mean and quick-tempered. It wouldn’t surprise Cathy if one day he became violent.
Carl recently had back surgery and now he frequently has to take pain pills. These medications tend to worsen Carl’s mood and violent tendencies.
BODILY INJURY THAT IS INTENTIONALLY CAUSED
Lately, Cathy has become concerned for her own safety and that of her children. Carl seems to be a loose cannon; any perceived slight can cause him to be angry.
One night, during an exchange of the children, Carl became very angry with Cathy. He pushed her against the wall, bruising her. All three children were in the room and saw it happen.
During their exchange the following week, Carl pushed Cathy down to the floor and dragged her around the room by her hair. Again, the children witnessed what happened.
By this point, Cathy was terrified of Carl. Her earlier fears had come true.
Cathy knows that the only way to protect herself, and most importantly her children, is to relocate far away from Carl. He knows exactly where Cathy lives, where she works, where the children attend school, and where they go for daycare and after-school care.
Cathy’s safest, best option is to return to New Jersey with the children. However, the custody order gives Carl significant visitation.
SUBSTANTIAL CHANGE IN CIRCUMSTANCES
First, Cathy files a motion with the court asking for a domestic violence protective order, which the court grants.
Cathy then files a motion to modify the existing child custody order. She asks the court for permission to relocate back to New Jersey with all three children, cutting off their visits with Carl.
Note that the court considered two facts to find that domestic violence had occurred. First, Carl committed a qualifying act by intentionally causing bodily injury: he pushed Cathy against a wall and bruised her. Because they previously lived together and have children together, Carl and Cathy are in a personal relationship. The judge therefore determines that Carl has committed acts of domestic violence against Cathy.
The court also found that a substantial change in circumstances affecting the well-being of the children had occurred.
Since Carl committed acts of domestic violence in the presence of the children, significant custodial time with Carl could be dangerous for the children. Plus, Carl’s frequent use of pain pills could impair his ability to adequately care for them.
Cathy has family and friends in New Jersey, which will give her a strong support system to help care for the children. She even has a full-time job already lined up, so she will be financially stable.
The judge allows Cathy to move to New Jersey with the children, agreeing that the relocation would benefit the children. They would be well cared for and safe. The move would allow the children to flourish without witnessing recurring violence. The judge permits Carl to have some visitation periods and creates a new custodial schedule taking the long distance into account.
But what if there hasn’t yet been this kind of obvious physical injury?
An Example of Domestic Violence Involving Substantial Emotional Distress
Tom and Toni were married for 10 years and had two children. When irreconcilable marital difficulties arose, they separated. Soon after, they entered into a child custody court order by consent.
The order granted Toni primary physical custody and Tom secondary physical custody. So, the children lived with Toni during the week for school and with Tom for a significant part of their time off from school, including weekends, holidays, and the summer. Tom and Toni live less than 15 minutes apart, but due to their work schedules, this was the best custodial schedule for their children.
They have now been divorced for five years. Over that time, Toni’s personality has gradually changed. Now Tom sincerely believes that Toni may be mentally unstable.
SUBSTANTIAL EMOTIONAL DISTRESS
These days, Toni continually tries to undermine Tom’s parenting. If Tom disciplines the children by grounding them or taking away a prized item, Toni immediately revokes the punishment or returns the item, even buying a new one if necessary.
Toni badmouths Tom on Facebook and publicly criticizes his parenting. She even tells the kids what a bad person and father Tom is. Plus, she curses in front of the kids and while talking about Tom.
Recently, Tom planned a cruise for the kids. He notified Toni of this trip according to the vacation provisions of their custody order. Instead of agreeing, Toni bought her own last-minute cruise with the kids. Upon their return, she told Tom that the children did not want to go on another cruise because they already went on one with her.
More and more frequently, Tom misses his scheduled custodial periods with the kids because Toni refuses to allow the children to go to his house. She doesn’t meet Tom when she’s supposed to. Additionally, she and the kids are not at home during the scheduled exchange times, which prevents Tom from seeing the children.
Tom hardly sees his kids anymore. When he does, Toni berates him with derogatory remarks about his parenting ability.
PLAUSIBLE THREATS OF PHYSICAL INJURY
While Toni has not yet acted on her threats, she has repeatedly threatened to come to Tom’s house and physically injure him if he tries to see the kids on certain occasions. Tom is afraid that Toni is being serious and is capable of following through with those threats.
Several times, Toni’s threats have prevented Tom from coming to the kids’ soccer games or school performances. Tom doesn’t want to do anything that may cause Toni to harm or embarrass the kids.
Overall, Toni’s actions are taking a major emotional toll on Tom and the children. She has disrupted the relationship and bond that Tom has with his children.
Tom believes the safest and best thing to do is to relocate, with the children, away from Toni. He files a motion to modify the consent custody order. He tells the court that he wants to relocate to a residence about two hours away from Toni. This will enable him to get himself and the children away from Toni’s mental instability. It will also protect all of them while still allowing the children to maintain some relationship with Toni.
SUBSTANTIAL CHANGE IN CIRCUMSTANCES
Again, Toni’s behavior meets the criteria for domestic violence because it satisfies both required factors. First, Toni committed a qualifying act by causing Tom substantial emotional distress. This is not a one-time argument; it is a pattern of conduct that has affected Tom’s ability to see his children. Second, because they were married and have children together, Toni and Tom are in a qualifying personal relationship.
The judge determines that a substantial change in circumstances affecting the well-being of the children has occurred.
Toni’s actions show such extreme hostility toward Tom that it has detrimentally affected the kids. The children have missed out on significant amounts of time with their father and have had to endure Toni’s bitter rants about him. The parent-child relationships between Tom and his children have suffered due to Toni’s direct actions. Her threats have impeded Tom from spending time with the children.
Plus, Toni’s continual undermining of Tom has negatively affected the children. They feel confused and upset when she degrades and disparages Tom in front of them. She also does not consider Tom’s opinions about the best interests of the children. Nor does she allow him to participate in decision-making.
Tom’s relocation with the kids would be beneficial to all of them. Tom has the ability to positively and safely promote a relationship between the children and Toni. Moreover, they would not be routinely subjected to their mother’s hostility.
Perhaps most importantly, distance would help Tom to keep himself and the children safe in the event that Toni decided to act on her threats.
The judge allows Tom to relocate with the children. It modifies the custody schedule to give Tom primary physical custody and Toni secondary physical custody.
Domestic Violence and Separation Agreements
Now consider these same examples with a small change. Imagine that both couples had been married and had reached separation agreements that the court had not entered as custody orders.
Their separation agreements would have detailed these custodial arrangements, along with the property settlement, alimony settlement, and any child support payments.
In a separation agreement, the custody schedule is a legal contract between the parents. Parents who wish to relocate can’t simply file a motion to modify custody because the court was never involved in the initial custody determination and did not formalize the agreement as a consent order.
If, several years after executing their separation agreements, Cathy and Tom experienced these same domestic violence issues, they would have to file a new custody action in court rather than a motion to modify.
Once in court, their cases would proceed much as they did under the consent order. The judge would hear the evidence about the domestic violence and the current custody agreements. The judge would then arrange custody based on the circumstances, determining whether a relocation is in the children’s best interests.
