A goal of North Carolina custody law is to enter custody orders that will withstand the test of time. The presumption is that children are best served by orders which will provide consistency and stability and that frequent trips to court to change custody are not in the best interests of children. However, the law also recognizes that there are situations in which custody orders need to be changed or updated and so there are mechanisms for modifying a custody order. Pursuant to statute, a custody order may be modified if the trial court finds that since the entry of the prior order there has been a substantial change of circumstances, that that change affects the welfare of the child, and that a new custodial schedule would be in the best interests of the child.
As you would expect, many things will change in the lives of parents or children over the years. However, not all changes warrant a modification of custody. In order to warrant a modification of custody, the changes must be significant and must have an effect on the child. There is no definitive list of what changes will and will not warrant a modification of custody – the trial court approaches each case on its own facts and makes its decision on a case-by-case basis. One of the more common situations we see that involve a request for a modification of custody is a situation wherein one party wants to move a significant distance away from their current location. Moves, such as those involving relocation to another state, will almost inevitably make the current custodial schedule unworkable. Whether you are the party who wants to relocate to another state or are the party who is staying in North Carolina, it’s important to know your rights and the procedures involved.
Understanding North Carolina Relocation Cases
Unless and until a custody order is modified, the order remains in effect and is enforceable through a contempt proceeding. So, if you are planning a move that will impact the current court-ordered custody schedule, you need to understand that the parent who remains in North Carolina can enforce the current schedule. Moving away and depriving the other parent of his or her custodial time is not looked upon favorably by the trial court. A parent considering relocation should file a motion to modify custody well ahead of the proposed relocation. Keep in mind, however, that if you are the primary physical custodian and you are the one who wants to move to another state, there is no guarantee that the court will modify the order to allow you to move the child out of state.
In relocation cases, as in all custody cases, a trial court will enter a custody order that it believes is in the best interests of the child. So, it is possible that when faced with making a decision about relocation, a trial court may decide it is best for the child to remain in North Carolina instead of moving to another state. When dealing with a relocation case, the trial court will consider the following factors in its analysis of whether a parent may be allowed to relocate with the child:
- 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 the visitation orders when no longer subject to the jurisdiction of North Carolina courts;
- The integrity of the noncustodial parent in resisting the relocation; and
- The likelihood that a realistic visitation schedule can be arranged will preserve and foster the parental relationship with the noncustodial parent.
The primary focus of the court’s analysis is the child and how the child will be affected by the move. A proposed move simply because one parent would rather live somewhere else, without showing that the move has some advantage to the child and that the relationship between the child and the parent who remains in North Carolina can be maintained, will often be rejected by the trial court. So, if you are the party who is seeking entry of a new custody order allowing you to move the child to another state, be sure that you have thought through all of the pros and cons the move will have on the child. Once the court has considered these factors and decided whether or not to allow relocation, it will then enter a custody order that sets out the new provisions for time sharing between the parents.
Contact Our North Carolina Custody Law Attorneys
If you are considering a relocation, you should seek the advice of an attorney before you commit to moving and definitely before you have the car packed up and are headed out of town. The attorneys at Collins Family & Elder Law Group can help you navigate your custody relocation case.