Believe it or not, divorce or separation between parties whose relationship with each other no longer functions in a workable manner can actually be a blessing, for both parties. A separation agreement or even a simple decision between the spouses that one or the other should move out, can be the first, healthy step in the process of “moving on” with one’s life. Difficulties arise however where the parties are parents of minor children and in order to “move on” with one’s life, one of the parties wants to move out of the city, county, or state altogether, and take the minor children with him/her. What can either spouse do or not do in such a situation?
This may seem obvious but parties can always simply agree as to how custody will work in the event of, or after, a party’s vacating the marital residence. Assuming said agreement is properly executed, it is perfectly valid. If parties can agree as to how custody will work in the event of such, there is no need for either parent to initiate a custody action or involve the court in a proposed parenting plan.
BUT WHAT IF WE CAN’T AGREE?
If however, you know, or at any time realize that the other spouse will never agree to your relocation with the children or will not cooperate, a lawsuit will be necessary.
The first thing any parent should know is that the district court does not have the authority to order a parent to relocate (or to refrain from doing so). See Kanellos v. Kanellos, 795 S.E. 2d 225 (2016). The Court can (and will) however, prevent a minor child from relocating with a parent if it feels that relocating would work against the best interests and welfare of the minor child(ren). If a parent is requesting that the Court allow them to relocate the minor child(ren), the parent so requesting (or his/her attorney) will have to present the Court with evidence on a number of factors. Those factors were outlined by the court in the seminal case of Ramirez-Barker v. Barker, 418 S.E. 2d 675, 1991, and are as follows:
a) The advantages of the relocation in terms of its capacity to improve the life of the child;
b) The motives of the custodial parent in seeking the move;
c) The likelihood that the custodial parent would comply with visitation orders when s/he is no longer subject to the jurisdiction of the court of North Carolina;
d) The integrity of the non-custodial parent in resisting the relocation; and
e) The likelihood that a realistic visitation schedule can be arranged which will preserve and foster the parental relationship with the non-custodial parent.
If, after hearing evidence on the above, the Court determines that advantages to the minor child in relocating outweigh the disadvantages, the Court may, in its discretion, permit the relocation with the child. The Court is not obligated to do so. Parties should also note that, while, the court will hear evidence on all the above-named factors, it is at the Court’s discretion to decide how heavily (or lightly) to weigh any individual factor.
Parties should be prepared then, to provide evidence on each and every factor, in spades.
Although there are very few hard and fast rules in a relocation case, there are a few factors that show up time and again of which any parent wishing to relocate with a child should be cognizant. First, moving to be with your new girlfriend/boyfriend/romantic interest—not generally considered to be a good reason to uproot the child. Moving to be closer to family, especially family with which the child already has bonds, is a very good motive. If you are the parent looking to move, show the court evidence that a reasonable visitation schedule can be arranged that allows the minor child to continue to have a healthy, active relationship with the parent remaining behind.
If you are the parent looking to prevent the move, evidence showing that a visitation schedule would be unworkable is very helpful. The parent wishing to make the move with the child should present as much evidence as possible of the advantages of the move for the child: good school system, good neighborhood, opportunities for the child that are only available at the new location. In a relocation case, quantity counts. North Carolina is jealous of the children in its custody—the parent wishing to relocate with the child is the parent who will have the burden of convincing the court that relocation is in the child’s best interest. The onus for the parent wishing to prevent the location will be on showing the court, first, that s/he has a strong and current bond with the child and that such bond would be impaired by any change in the visitation schedule resulting from a relocation and second, that any benefits from the relocation to the child are, at the least, offset by the benefits to the child in staying.
Finally, it is important for both parents to remember that, respectfully, it’s not about you.
It’s about the minor child and how the move will affect him or her.