Hunter & Hein, Attorneys at Law, PLLC, © Copyright 2018.
If a relocation is contested, the matter will likely wind up in front of a judge who must decide whether to allow the relocation. There are a number of factors that a judge must take into consideration when ruling on a child custody relocation case. There are also numerous interests involved, including those of the child, each parent, and anyone else that may be impacted by a relocation. However, the “best interests of the child” must be considered above and beyond the interests of the parents and any other parties involved.
The case of Ramirez v. Barker (418 S.E.2d 675, 107 N.C. App. 71) spells out a non-exclusive list of factors that should be considered when determining the best interests of the minor child involved in a relocation case:
1. The advantages of the relocation in terms of its capacity to improve the life of the child;
2. The motives of the custodial parent in seeking the move;
3. The likelihood that the custodial parent will comply with the visitation orders when no longer subject to the jurisdiction of NC courts;
4. The integrity of the noncustodial parent in resisting the relocation; and
5. The likelihood that a realistic visitation schedule can be arranged which will preserve and foster the parental relationship with the noncustodial parent.
Written by Bill Hunter, Hunter & Hein, Attorneys at Law, PLLC, 03/24/2018
* Please note that the following is a brief overview of a complex legal subject and is not meant to provide legal advice. When involved in a child custody dispute, it is important to consult with a family lawyer in your area who is familiar with your local rules and procedures. If your matter is located in Mecklenburg or Cabarrus counties, our Charlotte child custody lawyers can help. Contact us today at 704-412-1442 to speak to an attorney.
There is no official definition of “relocation” when it comes to North Carolina child custody disputes. We tend to tell our clients that a case is likely to turn into a relocation case when the distance created by the move has a major impact on the minor child and the rights of the parties under the current child custody arrangement. A move across the country would certainly trigger the implications of a relocation case, but a move thirty minutes away may or may not.
A parent may wish to relocate for a number of different reasons, including: being closer to other family, pursuing a romantic interest; accepting potential promotions; or seeking new job opportunities. When the moving parent moves without the permission of the other parent or the court, a number of potential issues may arise, especially if the move is out of state (for more on the potential issues that may arise with an out of state move, view our blog “Can I Move Out of State With my Child?”). If there is a child custody order already in place at the time of the relocation, then prior to changing the existing order the judge must first find that there has been a substantial change in circumstances impacting the welfare of the minor child involved. North Carolina case law holds that a relocation by itself is not enough to create a “substantial change” warranting modification of an existing order…the party moving for the modification must also show that the relocation actually has an impact (positive or negative) on the welfare of the minor child.
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Many child custody court orders include a provision such as the following: “In the event that either party wishes to relocate with the minor child more than thirty (30) miles away from the other party’s residence, the moving party shall, as soon as possible, notify the other party of his or her intentions in writing and will not relocate until a new visitation agreement is negotiated and signed by the parties or is ordered by a court of law.” These provisions are helpful, may serve as a deterrent to a party contemplating a move, and can result in a party who disobeys the agreement being held in contempt – which may have numerous negative consequences for the disobeying party.
However, at the end of the day if the parties are not in agreement regarding a potential move, then a judge will have the final say as to whether the move will be allowed. That said, provisions such as – “Neither party shall ever more than (30) miles away from each other under any circumstance.” – may create a deterrent to move and grounds for contempt if disobeyed, but such a clause will not prevent a relocation if a judge finds the move to be in the best interests of the minor child involved. In other words, if a relocation case makes it in front of a judge, the judge is not bound by a clause in a previous order or agreement saying that neither party shall move.
In addition to the Ramirez-Barker factors, a number of other factors are often considered in relocation cases, such as: the extent to which visitation has been allowed by primary custodian and actually exercised by the noncustodial parent; the ability of each parent to provide for the child financially and emotionally; the impact of the move on the standard of living of the minor child; the impact of the move on the social and familial relationships of the minor child; the amount of time the child has spent in the geographic area; the distance of the proposed move; the resources available to the parties in support of additional travel expenses to accommodate visitation; and any other factors that may have an impact on the welfare of the child.
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The outcome of a case will depend heavily upon the individual facts involved and how they impact the factors discussed herein and the best interests of the child. Assuming all else equal between the parents (i.e., each parent is fit and provides a suitable environment for the minor child involved), we typically don’t see relocations allowed. In the end, the negative impacts of removing a child from his or her current location often outweigh the potential benefits of a move. That is not to say that people do not win relocation cases and there are certainly scenarios and fact patterns that support relocation. In the end, a judge is charged with placing the child in an environment that is the most supportive of the full development of the child’s physical, mental, and moral faculties.