We are often asked how relocation works in a custody situation, when a parent can relocate, and other relocation related questions. The question is not as simple as it may seem at first blush. There is no specific situation where a parent can relocate every time, or under which a parent will always obtain or maintain primary custody in relocation. So, the question remains, what should a parent consider and how does a parent know when he or she can relocate (or when the other parent would be allowed to relocate)?
View of the Court
The law in North Carolina has long been that the welfare of the child will be the court’s primary consideration. The Shepherd case says that the child’s best interests are the “polar star” to guide the court in any custody determination. See Shepherd v. Shepherd, 273 N.C. 71, 75, 159 S.E.2d 357, 361 (1968).
What are in the child’s best interests? Divorcing parents can certainly disagree over what ‘best’ actually is. Generally speaking, the child’s best interest represent an open door – any witness, communication, testimony, document, expert opinion, or items relevant to what is good, bad, better, or worse for the child or children can be considered. What is a parent to do when faced with a relocation? Case law goes on to provide further guidance. In evaluating a proposed relocation in a child custody case, the court should consider a number of factors, including:
- The advantages of the relocation in terms of its capacity to improve the life of the child;
- the motives of the custodial parent in seeking the move;
- the likelihood that the custodial parent will comply with visitation orders when he or she is no longer subject to the jurisdiction of the courts of North Carolina;
- the integrity of the noncustodial parent in resisting the relocation;
- and the likelihood that a realistic visitation schedule can be arranged which will preserve and foster the parental relationship with the noncustodial parent.
See Evans v. Evans, 138 N.C. App. 135, 142, 530 S.E.2d 576, 580 (2000) (quoting Ramirez-Barker v. Barker, 107 N.C. App. 71, 80, 418 S.E.2d 675, 680 (1992), disapproved of on other grounds by Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d 898 (1998)); Miller v. Miller, 241 N.C. App. 656, 775 S.E.2d 695 (2015).
It is important to note that the court can decide how much weight it will assign to each factor, and may or may not be swayed by any factor or set of factors. And the court can consider any relevant information or evidence, even if it is not on the above list, if it relates to the child’s welfare.
How does a Court consider these factors?
In North Carolina District Court (where child custody matters should be heard), the judge has broad discretion in a custody case. The Judge has the benefit of seeing the parties in person, hearing witnesses, receiving and reviewing evidence, and hearing the arguments of counsel for each party. Our experience has shown that the court will use this discretion to look at the case that is presented through the aforementioned lens of “child welfare” or “best interests of the child.”
Is it best for the child or children to relocate?
For better or worse, it all depends on the facts and circumstances of your particular case. The court should apply the above factors, and decide what is in the child’s best interests based upon the evidence and arguments presented. There are many factors to be considered in addition to the factors listed above. A short list would include job opportunities, cost of living, opportunities in the new community, taxes, family support available in each community, and more.
What can I do if I want to relocate (or if my ex has relocated)?
Call a lawyer who is experienced in family law and relocation cases. Depending on the situation, an ex parte emergency custody request may be available to you (or the other side!). While not universally true, a relocation case is much more likely to end up in court because there are only two choices – the two places involved. This is a forced situation where one parent must “win” on the location issue. It requires a skilled professional to make the best possible argument for why the parent/child relocation should be granted or denied.
My ex relocated, what can I do?
In addition to filing a lawsuit, there are many strategies which can be considered and employed. Often, we will associate with local co-counsel in the area of relocation to determine the odds of improving one’s custodial position in that jurisdiction. We can consult with professionals, such as forensic psychologists, to assess the case and provide expert testimony. Relocation requires diligent work and attention, and is often complex litigation. You need to formulate a plan with a qualified professional as soon as you can. If you received a court ruling that you consider to be unfavorable, and are still within the appropriate timeframe, you may consider appealing the court’s ruling.
I am (or my spouse is) in the military. How does relocation impact a military divorce case?
First, it is always best to plan for long distances in any custody agreement or order entered by the Judge. We frequently recommend having essentially two custody arrangements: i) if the parties live within a certain mileage radius; and ii) if they live outside of that same radius. This can assist both the servicemember and the spouse by preventing them from having to run to court to modify existing custody arrangements every time there is a new permanent change of station (PCS) or move.
One must bear in mind that the law clearly allows for consideration of activities and conduct in a custody case. This is important when the actions of a parent are as a result of military orders, as opposed to a personal choice to move or relocate.
Modification of existing custody determinations can also be very important to the military family with the somewhat regular relocation of military personnel every three or four years.
For more on this issue, see The Military Divorce Handbook, (Am. Bar Assn., 3rd Ed. 2019) and the other resources available online written by the principal of our firm, Mark E. Sullivan.
Kris Hilscher practices family law in Raleigh, North Carolina. He works on family law cases, and works with attorneys nationwide as a consultant on military divorce issues in drafting military pension division orders. He can be reached at 919-832-8507 and at firstname.lastname@example.org.