Can My Spouse Take Our Child and Move Out of State?

When mom and dad legally separate and move into separate homes, it’s common for one parent to be tempted to move out-of-state. Often times, he/she wants to bring the kids along, understandably. This happens for a variety of reasons. Perhaps the relocating spouse wants to live near family members “back home,” or in other cases there’s simply a desire for a fresh start. I have represented parents who want to move into the parties’ beach home or mountain house, and they feel this would be a great situation for the kids, as well.

But the other spouse almost invariably wants the child to stay in Charlotte rather than being forced to see them on an infrequent basis.

So who wins? Is mom given favor and allowed to do what she wants? Is the non-relocating parent favored because the kids benefit from as little life change as possible during the already difficult trauma of divorce?

Fortunately, Judges do not simply “wing it” and go with their guts. They must consider five (5) specific factors, all of which relate to the best interests of the minor children. These factors are laid out in the North Carolina Court of Appeals case, Ramirez-Barker v. Barker. (See entire case opinion here.)

 

Factor #1: Advantages of the relocation to improve kids’ lives

 

The primary two points that tend to arise under this factor are a job opportunity that comes with a substantial pay increase and the presence of family members who will provide a helpful support network.

Let’s say mom used to live in New York, and virtually all of her family members still live there. Judges often find that a child will benefit from being surrounding by grandparents, aunts, uncles and cousins if there is already a close relationship there. However, this can be offset when dad has a large family located in the Charlotte area.

I have also represented a mom who received a large pay increase to relocate to California. She was able to prove to the court that the children would benefit from this pay raise in the form of participation in different sports and activities, have the advantage of a private tutor, and having a large yard in a safe neighborhood.

Meanwhile, the court must consider the advantage of staying in Charlotte, as well. These often include the ability to remain in the same school surrounded by familiar friends and peers, perhaps staying in the same home, and not adding additional flux into an already tumultuous time of life.

Factor # 2: Motives of custodial parent in seeking the move

 

The main goal here is to determine whether the relocating parent is putting the child’s interests or his/her own interests first. For example, I’ve seen a parent wish to relocate in order to be closer to a new signicant other, or perhaps to be closer to recreational opportunities he/she enjoys. These tend to look more selfish than selfless when it comes to a custody dispute.

In other cases, I have seen parents who wish to relocate for a much higher paying job, or to be near a meaningful support network of extended family who will provide care and nurture for the child. Perhaps the schools are better in the new location, as well.

Judges want to be sure parents are focusing primarily on where the kids will succeed, not on where the parent desires to live.

 

Factor #3: Likelihood the custodial parent will comply with visitation orders when no longer in NC court’s jurisdiction

 

It is an unfortunate truth that some parents give lip service to the importance of maintaining a relationship between the child and the other parent. But once they relocate, there are always excuses for why the kids cannot see the non-relocating parent at the scheduled times. Perhaps the kids are sick, or they’ve been committed to weekend soccer matches.

If a Judge is going to allow a parent to relocate with the minor children, then she will want to be confident that the non-relocating parent will get to exercise all scheduled visits.

 

Factor #4: Integrity of noncustodial parent in resisting the relocation

 

Another unfortunate reality is that some parents resist the relocation simply because they don’t want to “lose” the custody dispute. In other words, for these parents, it isn’t about the children’s best interests. Instead, they are primarily concerned with the other parent simply not getting their way.

Many parents undergo a confusing transformation during and after a separation, in which they become concerned with how others see them, and indeed how they seem themselves. Are they a “good parent?” Are they selfish? Do they have a close relationship with their child? These might be fair questions, but they aren’t the same questions that concern a Judge who is making a custody determination.

If a parent wishes for the child to remain in Charlotte rather than relocate, then they need to have a good reason that relates to the best interests of the child.

 

Factor #5: Likelihood that a realistic visitation schedule can be arranged to preserve relationship b/t kids and noncustodial parent

 

The biggest challenge when a parent relocates with a child is that it becomes difficult for the non-relocating parent to continue to see the child on a frequent basis. This difficulty is often based on the reality that a child is going to be primarily tied to one area where he or she attends school, and only during holidays and summers will the child be free to travel far from home for more than a 2- or 3-day weekend.

For example, mom and dad live together in the Myers Park school district. Then they separate, and mom wishes to relocate with the 12-year old child to Pennsylvania, where she grew up and where her family still lives. Meanwhile, dad wishes to remain in Charlotte where his job, friends, and social network exist. If the children are allowed to relocate with mom, then dad will most likely only see the kids on holidays, during summer breaks from school, and when he chooses to travel to Pennsylvania.

A judge must consider this untenable outcome when deciding whether it is in the child’s best interests to relocate out of the Charlotte area, as it will ultimately result in more difficulty maintaining a close relationship with the non-relocating parent.

 

Conclusion

 

Relocation cases are among the most difficult custody situations to navigate. It is often possible to craft a positive solution with the help of an experienced custody attorney, perhaps via mediation or simply by way of effective communication between the attorneys. This can be a veritable life-saver for parents who love their children, whether they are the one who wishes to stay or to relocate.

As always, this article is not legal advice, and it is important that you seek the advice of an experienced divorce attorney regarding your unique facts and circumstances before making any major decisions that might impact you or your family.