Relocation and Child Custody
Before World War II, most people did not move far from the place where they were born and raised. However, after World War II, travel became easier and people migrated from small towns to cities. Corporations grew to have branches in different cities and different states. With the increasingly mobile population, it was inevitable that divorced families would have issues when one of the parents relocated out of the original area. While there is no set rule regarding relocation, the court has attempted to set out guidelines for the judges to follow in determining an appropriate modification, if any, of the original order.
In all child custody matters, the polar start is for the court to determine what custodial situation is in the best interest of the child. In all modifications after the original child custody or, the person requesting the change must show two things.
1. First, the court must determine that there is a substantial change of circumstances since the entry of the prior order.
2. Second, if the court determines that there has been a substantial change, the court must then decide what, if any, change in the original order is in the best interest of the child.
It may seem to most people that moving out of state or far enough away from the present location that the present custody schedule is unworkable is an obvious change of circumstances, but the court does not agree. A case addressing many important issues in relocation matters, 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)) held that “a change in a custodial parent’s residence is not itself a substantial change in circumstances justifying a modification of a custody decree. [citations omitted] If, however, the relocation is detrimental to the child’s welfare, the change in residence of the custodial parent is a substantial change in circumstances and supports a modification of custody. “ The court went on to state “it will be a rare case where the child will not be adversely affected when a relocation of the custodial parent and child requires substantial alteration of a successful custody-visitation arrangement in which both parents have substantial contact with the child.” Here it is important to note that since that time, the court has modified the criteria of when the relocation is a change of circumstances from the original situation which required showing the change to be detrimental to the child to one where the change has either a positive or a negative effect on the child.
While there may be some negative factors affecting a child in a relocation situation, there may also be positive factors and the net result of whether the child should move with the one parent or remain with the other is the crux of the court’s dilemma.
As in most custody matters, the decision of the court is a heavy one and will leave one, if not both, parents unhappy. The best that any parent or any judge can do is to use one’s best judgment to determine the best interest of the child. The appellate court in Ramirez-Barker set out the following suggested criteria for the trial court to consider. These factors include, but are not limited to:
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 visitation orders when he or she is no longer subject to the jurisdiction of the courts of North Carolina;
4. the integrity of the non-custodial 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 non-custodial parent. (Ramirez-Barker v. Ramirez at p. 680).
In situations where the parents share custody of the children, the situation is even more difficult. Often times the moving parent is put in the position of having to choose between staying in place with the child or moving with a new spouse or to better the party’s employment situation. A parent who makes the understandable but flawed statement that, “If I can’t have my child with me, I won’t move.” is giving the court an easy out. The court will reason that there is no reason why it should not continue the present order so nothing will have to change for the child.
Life is full of hard choices and it is not easy to be a parent. There are times that the desires of a parent will need to yield to the best interest of the child. As in most situations, people tend to view the circumstances and desired outcome in terms of what they want or what is good for them, not what is best for someone else or even for the child. Children are very self-centered, their world is small and is made up of the people and things the child knows. As the child grows and matures the world view and the child’s relationship to the world expands. Because of these developmental realities, the child is not an accurate reporter of what is in the child’s best interest and, truly, is not even able to accurately report what the child wants. Nor is it fair for a parent to ask the child to make such an important decision. Start with the assumption that your child loves both parents and wants to please both parents and make them happy. Then recognize that the present situation puts the child in the unenviable position of being unable to make the two people the child loves more than anyone in the world happy. This decision is not your child’s choice.
Having said the decision is not your child’s choice does not mean that your child does not have an opinion. The older and more mature the child, the more the child is able to think through the consequences of a move. If your child has an unprompted opinion, you, as a parent, need to take that opinion into consideration in thinking through your position. Just like everything else in your relationship with your child, the child’s wants and desires are always a matter of consideration; but your child is not the boss and does not always know what is in the child’s best welfare.
There are many reason a parent may wish to move, some good, some bad, some neutral. In the end, those reasons, while important, are not relevant to the final matter the court must decide. While a move may enhance or improve a parent’s life, and while the parent who is not moving may feel that the relationship with the child may suffer if the child moves, the sole matter the court needs to address is what is in the best interest of the child.
(“It is well established in this jurisdiction that a trial court may order a modification of an existing child custody order between two natural parents if the party moving for modification shows that a substantial change of circumstances affecting the welfare of the child warrants a change in custody” (citation and internal quotation marks omitted)); Stephens v. Stephens, 213 N.C.App. 495, 498, 715 S.E.2d 168, 171 (2011).