“I am getting married, moving across the country, and taking our child with me.”
What do you do when your ex tells you this? Where do you even begin? Maybe you go into panic mode. Maybe you are angry. All that your son has ever known is in North Carolina. All of your family is here. Your daughter is excelling in school and in her extracurricular activities. You have never lived that far away from your children. They need you around. Maybe you don’t even like your ex’s new partner, and there’s no way you want your kids living with that person. What if the new partner has a criminal history? Do you even know that he or she doesn’t?
You may think there is no way any judge would ever agree to your ex moving so far away and taking your child. But what if the judge did agree? Is that possible?
Or maybe you are the one who is remarrying. You have finally found someone that you want to spend your life with. You know this is the person for you. Your kids love your partner, and he or she loves them. Finally, your life is going great, but you have a custody order in place that won’t work in your new life. Your soon-to-be new spouse is in another state or a long way from where you and your children currently live. There is no way you can continue to follow your custody order. You will need to have it modified. Surely, your co-parent can see how well the kids are doing and how great a stepparent your new partner will be.
Will the judge allow you to modify your custody order? What if the judge denies your motion to modify the order? What will you do?
In this chapter, we’ll talk about what happens when a parent is relocating for a new relationship and about the situations where a judge may grant or deny a request to modify a custody order.
(Re-)Marriage by Itself
Suppose your ex tells you that he or she is getting married (or remarried) but will continue to live locally. The problem is that you have never even met this new person—or you have, and you do not like him or her. You have no idea what kind of person he or she is. What kind of stepparent will he or she be? You do not want your children around this mystery person! And what if he or she already has children? What do you know about them? Nothing! So, you decide to have your custody order modified.
You do some research and discuss with your lawyer the reasons you want to modify your custody order. You already know that you must have a substantial change in circumstances affecting the children’s well-being before the court will modify the order.
Is marriage or remarriage a substantial change in circumstances? Your children will be affected. They will gain a stepparent, and another adult will be living in the home with them. Is this enough to modify custody?
A NEW RELATIONSHIP IS NOT ENOUGH TO MODIFY CUSTODY
Unfortunately, marriage or remarriage alone, with no other factors, is not enough to count as a substantial change in circumstances affecting the children’s well-being.
So what does it take to have a substantial change in circumstances, particularly when a parent’s new relationship involves a relocation?
There Must Be Both a Disruption and a Direct Link
To meet the modification standard of a substantial change in circumstances affecting the children’s well-being, you must be able to show two things:
- that the marriage and the subsequent relocation would be disruptive to the children, and
- that there is a direct link between the relocation and the disruption.
AN EXAMPLE WITH NO SHOWING OF DISRUPTION
John and Julie have a daughter together named Jessica. John and Julie separated and eventually divorced when Jessica was two. All three have lived in the same county of North Carolina, both before and after the separation. During the separation period, they negotiated a custody arrangement that was entered as a consent court order for child custody. Under the order, Jessica lived with Julie during the week and with John on weekends. Holidays and summer vacations were divided evenly between Julie and John.
Julie Remarries and Plans to Relocate With the Child
A few years later, Julie met Bob and fell in love. They married when Jessica was eight. The problem is that Bob lives and works in New York. Before meeting Bob, neither Julie nor Jessica had ever been to New York. Julie has no family or friends in New York other than Bob.
Julie assumed that since she has primary physical custody of Jessica, they could easily move to New York to live with Bob. John could still see Jessica sometimes to maintain their father-daughter relationship. It might not be every weekend like it has been, but he would not be cut off completely from Jessica.
Julie talked with John about her plans to move to New York to be with her new husband and to take Jessica with her. She indicated that she would look for a job there, but she didn’t have one yet. Similarly, she planned to enroll Jessica in school in New York.
But Jessica Is Only Familiar With North Carolina
John was understandably angry. He could not believe that Julie would even think about relocating and taking their daughter so far away. John had maintained his same residence in the same county since he and Julie separated. He had a good, stable job. Even all of Jessica’s extended family lived in North Carolina, including her grandparents, aunts, uncles, and cousins. Jessica has lived in the same area for all eight years of her life. This is all that she is familiar with—it’s what she knows. John thought surely a judge would modify the custody order to grant him primary physical custody instead.
So, John filed a motion to modify their consent court order. He argued that a substantial change of circumstances affecting Jessica’s well-being had occurred: namely, Julie had remarried and planned to relocate with Jessica to another state.
John Argues That the Relocation Would Put the Child in Strange Surroundings
The judge held a hearing on John’s motion. Both parents presented evidence and testified. Since it was John’s motion, he had the burden of showing the judge that a substantial change in circumstances affecting Jessica’s well-being had occurred.
In the hearing, John argued that Julie’s proposed move to New York with Jessica would disrupt his visitation schedule. He needed those visits to maintain the strong father-daughter relationship he had with Jessica and to ensure that she had enough quality time with her dad. Further, John argued that Jessica would be living in a new house in a new city with a new stepparent and attending a new school with new classmates.
This whole move would be strange and unfamiliar to Jessica.
The Judge’s Ruling: No Disruption, No Direct Link
To John’s surprise, the judge denied his motion to modify the child custody order. The judge stated that John did not adequately show that Julie’s proposed move to New York after a remarriage would disrupt Jessica’s well-being. The only evidence that John presented in the hearing was about how his relationship with Jessica would be affected and how the move would put Jessica in unfamiliar surroundings.
Note that courts do not automatically assume that changes—even major changes like the ones that Jessica would experience with a move to New York—are disruptive or negative experiences for a child.
The judge needed John to demonstrate a direct link between the remarriage, the relocation, and his daughter’s well-being. Because John did not show that direct link, the judge could not determine that there was a substantial change in circumstances affecting Jessica’s well-being due to the relocation.
AN EXAMPLE OF A CLEAR SHOWING OF DISRUPTION
Let’s change some facts in the scenario of John, Julie, and Jessica. Julie has still married Bob and is proposing that she and Jessica move to New York to live with Bob. But now, suppose that John presented more detailed facts at the hearing on his motion to modify the custody order.
Jessica Has an Excellent Relationship With Both Parents
At the hearing, John presented evidence directly addressing Jessica’s well-being. Jessica has a very close relationship with both of her parents and gets along with them equally. She sees each parent regularly and enjoys spending time with each parent. Jessica frequently participates in extended family functions with both her mother’s family and her father’s family, who all live locally.
Jessica Has Strong Extracurricular Connections and Friendships
Furthermore, John provided evidence that Jessica is excelling in her school in North Carolina. Both John and Julie are involved with her progress in school, and both maintain contact with her teachers. Jessica regularly participates in extracurricular activities and has established strong friendships with children her age. Jessica has developed and maintained strong connections in both parents’ neighborhoods.
In short, both parents are highly involved in Jessica’s mental, physical, and educational development and well-being.
Jessica Has Begun to Express Fears of Relocating
John testified that he and Julie have gotten along fairly well in the past and have been able to co-parent in a positive way to Jessica’s benefit. But ever since Julie remarried and told John that she was moving out of state to live with her new husband, their dynamic has deteriorated. John and Julie have argued about what is in Jessica’s best interest and how Julie’s remarriage and relocation would affect her well-being.
Eight-year-old Jessica has noticed the tension between her parents. Jessica has started asking questions about what would happen with John if she moved to New York. She has expressed fears of not being able to see both parents, her extended family on both sides, and her friends from school and extracurricular activities.
Jessica Has Exhibited Anxiety About Relocating
Recently, at a custody exchange, Jessica even exhibited what John called separation anxiety. Jessica started crying and seemed fearful of leaving John to go with Julie. Jessica said she was not sure when she was moving to New York and feared it would happen right away.
The Judge’s Ruling: Disruption Shown With a Direct Link
With these additional facts, the judge granted John’s motion to modify the child custody order. The judge found a substantial change in circumstances affecting Jessica’s well-being. He ruled that a move to New York would disrupt Jessica. Further, the judge drew a direct link between Julie’s remarriage with its accompanying relocation and Jessica’s well-being.
This time, the remarriage and proposed relocation had already begun to negatively affect Jessica. She had directly expressed her fears about Julie moving out of state to be with Bob. The judge agreed with John that a move to New York would disrupt Jessica’s stable and frequent contact with John and all of her extended family on both sides. Further, the move would disrupt the friendships and extracurricular activities that Jessica has established.
The Relocation Does Not Benefit Jessica
The judge was unable to determine that a move to New York to live with Julie and her new husband would offer Jessica any advantages educationally, socially, or culturally compared to what she already had in North Carolina. The judge even hinted that Julie’s proposed move out of state to live with her new husband was not to benefit Jessica but to satisfy her own selfish needs.
ANOTHER EXAMPLE OF A SHOWING OF DISRUPTION
Kyle and Karen have a 13-year-old daughter, Kelly. Kyle and Karen have been divorced for several years. Their established joint custody order has worked well and to Kelly’s benefit over the years.
But then Karen meets Jack.
Karen Plans to Marry a Sex Offender
Karen and Jack become engaged. After they marry, Karen plans to move into Jack’s house. Kyle has never met Jack. However, he finds out from one of Karen’s friends that Jack was convicted in Virginia five years ago for a sex offense involving a 14-year-old girl. He digs a little deeper and finds out that at the time of Jack’s offense, he was a teacher at a public school where he coached the girls’ soccer team. Kyle is shocked that Karen has never mentioned any of this to him.
Kyle immediately files a motion to modify custody because Karen’s remarriage to a sex offender would adversely affect Kelly.
At the hearing on Kyle’s motion, he presents evidence to the judge that Jack’s victim from the charged offense five years ago was not his only victim. Further, Jack has not participated in treatment or shown any rehabilitation. Due to Karen’s work schedule, Kelly would be alone after school with Jack for several hours. Kelly is the same age as Jack’s previous victims.
The Judge’s Ruling: Disruption Shown With a Direct Link
The judge grants Kyle’s motion to modify the custody order. The judge rules that Karen’s remarriage to Jack and her subsequent relocation to Jack’s house would be disruptive to Kelly and would adversely affect her well-being. He finds a direct link between the remarriage, relocation, and Kelly’s well-being. Such a remarriage and relocation would endanger Kelly. Note that this relocation does not involve a move out of the community; the disruption is due to the potentially dangerous situation created by allowing Kelly to live with a sexual predator.
The Bottom Line
For a parent’s remarriage and subsequent relocation to create a substantial change in circumstances that would adversely affect your child’s well-being, you must show evidence of a disruption in the child’s life. You must also prove that a direct link exists between the relocation for the new relationship and the disruption.
A STRANGE AND UNFAMILIAR ENVIRONMENT IS NOT NECESSARILY A NEGATIVE DISRUPTION
Not being able to spend as much time with your child if the other parent remarries and moves away does not constitute a substantial change in circumstances affecting the well-being of your child. Likewise, the fact that your child will be in a strange and unfamiliar environment does not necessarily mean that there will be a negative effect on your child’s well-being. In these cases, there is no direct link yet showing that the remarriage and move would cause a negative disruption for the child.
SHOWING A DISRUPTION THAT DOES NOT BENEFIT YOUR CHILD IS ENOUGH TO PREVENT A RELOCATION
You may be able to establish a direct link by demonstrating specific facts to the court. Maybe you can show that a remarriage and relocation would pull your child away from well-established familial relationships, friendships, and activities. If these lost connections could cause your child to decline rather than flourish educationally, socially, and culturally, you may convince a court that there is a link between the relocation and a negative disruption.
Similarly, if a remarriage and relocation would put your child in harm’s way, those facts can establish a direct link between the remarriage, relocation, and resulting disruption to your child.
MARRIAGE AND RELOCATION MUST BENEFIT YOUR CHILD
Regardless of whether you or your ex is the one marrying and relocating, the new relationship and relocation must be to your child’s benefit. You must be able to articulate reasons and provide evidence about the advantages for your child. Moreover, you must show that the relocation would not negatively affect your child’s educational, social, or cultural well-being.