Can I Move with the Children?

Are you divorced or separated with children and considering a move, either just for yourself or with a new partner? The elevatable question pops up, can move with my children, to another city or another state, away from the other parent? If that sounds like you or you are interested in finding out more about this complicated child custody issue and how North or South Carolina deal with it, you have come to the right place. Welcome to Splitsville.

One way a move can occur is with the consent or approval of the other parent ([3:42]). With consent, the moving parent must remember the most important thing to the other parent is likely access to the child. What needs to be considered here is how the moving parent might make it easy for the other parent to remain a constant figure in the child’s life while living out of town.

If the situation comes down to a fight in court, regardless of if a custody order needs to be modified or if one is currently being considered, the Court will always consider what is in the best interest of the child…not the parent ([6:33]). That means the moving parent has the burden of showing the court how the child or the children are explicitly going to benefit from a move. There is a presumption that having both parents close by will be the best situation for the child. This presumption can be strengthened or weakened by the level of involvement of the parent seeking to block a move. The Court will also look at the moving parent’s motive for the move, and the other parents motive to challenge the move. The distance of the move will also factor in a Court’s decision because great distance may make parenting time more difficult and travel expenses too great. Modern technology has changed this issue some with the ability to communicate and be present virtually more accessible to more families; it can make a move a bit easier. Also, the age of the child is a consideration, the more activities children are in the community or sporting events, the more difficult a move.

If a court finds that a move is not in the child’s best interest, a parent may still move but without the children ([11:48]). This could mean a change in the custodial parent may need to occur.

This is a very tough issue. If you have questions about moving with children after or during a divorce, consult a local family law attorney. If you are in North or South Carolina, you can contact Leigh Sellers and her team at http://www.TouchstoneFamilyLaw.com

The insights and views presented in “Welcome to Splitsville” are for general information purposes only and should not be taken as legal advice for any individual case or situation. Nor does tuning in to this podcast constitute an attorney-client relationship of any kind. If you’re ready for compassionate and reliable legal guidance on your journey through divorce, contact Leigh Sellers and her team at http://www.TouchstoneFamilyLaw.com

Read Full Transcript

Intro:                                         [00:01]                       Hello there. Going through a divorce? Considering one? Sorry to hear that. But, here you are. Welcome to Splitsville. You’ll find Splitsville to be a pretty unique place, a new world, really, with its own rules, its own expectations, and in many ways its own language. But don’t worry, you have a knowledgeable guide along the way, a family law attorney with three decades of experience under her belt. And now, here she is, your host and guide, Leigh Sellers.

Leigh Sellers:                         [00:36]                       Hi, everyone. And thanks for tuning in to another episode of Welcome to Splitsville. I’m your host and guide, Leigh Sellers, founder of Touchstone Family Law. And in this episode, I’ll be answering another question that many newcomers to Splitsville have. Can I move with the children? So, let’s dive in.

Leigh Sellers:                         [01:00]                       Often, people find themselves in a city because they’ve followed their partner for their career. They’ve ended up following them from city to city, state to state, but they don’t really have any connections or ties to the area. Sometimes, people have been divorced for quite a while, and they are remarried, and their new spouse has opportunities that would take them out of town or out of state. So, the question comes, well, can I move and take the children with me? That is always one of the most complicated custody questions asked.

Leigh Sellers:                         [01:38]                       There’s some differences between cases where there has been a judicial determination of custody and some where there have not, but the factors that the court looks at to make a decision if it’s brought to them are the same, whether or not it is a change of a custody order because somebody who wants to relocate or whether they’re in the middle of a custody case. And part of the consideration that the judge needs to consider is the fact that one of the parents is planning to relocate away from the area, more importantly, away from the other parent.

Leigh Sellers:                         [02:16]                       So if we go back and think about what the underlying bedrock of a custody case is, that it’s the best interest of the child/children and not the best interest of the parents, you can imagine that that’s what complicates these sorts of inquiries because there are a lot of reasons why a relocation is going to benefit one parent considerably. Some common examples are that they’ll have the support of family and friends, and the children will have the benefit of these extended family members and cousins, and can deepen relationships with the maternal or the paternal side of the family, whichever parent is trying to relocate.

Leigh Sellers:                         [02:58]                       There are often statements that suggest, “I will have better job opportunities if I’m allowed to relocate because I have deeper connections to that place. My family has deep connections, and I will be able to more easily returned to the job market or more easily engage in the job market,” if it’s someone who hasn’t worked outside the home while they’ve had the children. Sometimes, it is, “But if my spouse takes this job, the children’s lives will be benefited because the income which they will be earning is going to allow so many fabulous opportunities that don’t exist if we stay here and keep this job, or there will be no opportunity because the … ”

Leigh Sellers:                         [03:42]                       So when you’re considering whether or not you’re going to be able to convince your ex-spouse, or your current spouse, whether or not you’re going to be able to relocate, the thing that’s most important to the other parent is access to the child. They’re concerned about the disruption in their relationship with their child. So, the first thing you want to do if you’re thinking about relocating and you need to get the consent, or at least the approval or the understanding of the other parent, is really think about how are you going to be able to bend over backwards to prevent your relocation from detrimentally affecting the relationship that the child has with the other parent and the access that the parent has to their children.

Leigh Sellers:                         [04:33]                       So when parents are co-parenting together or children have parents that live in the same town, they’re are a little more easily able to pop in. So if there is a small event that is …. And I say small by virtue of the time it takes, but enormously important to the children, like a donuts with dad, or a certificate ceremony in elementary school or middle school, or even just an important game that they’re participating in, or a piano recital. It’s easy for both parents to attend whether or not it’s their parenting time. But if you move hours away, it can be much more difficult for somebody to commit two or three hours of travel for a 30-minute presentation during a recital. So, you really need to be thinking proactively about, what am I going to offer that is going to make the other person comfortable with this decision when they look at all of the factors? So, be thinking about how generous you can be about making sure that you protect that access.

Leigh Sellers:                         [05:37]                       I know of people who have bought homes with garage apartments so that the other parent could come and not incur cost and could come to the city that the child would be residing in and stay free of cost. They would only have their travel to consider so that they could come as frequently as they could get away and not be burdened by the travel expenses. I know people who have said they’ll buy the tickets with their frequent flyer miles so that there’s no air travel, parents who have suggested that they will pay for the children to travel back out, or buy them some device where they can Skype, or help them find a job where they can follow, too. So, people will go to great lengths to try to secure the consent of the other parent. And I think that that’s the first thing you should do.

Leigh Sellers:                         [06:24]                       But if it comes to a situation where you’re having to go to court and get a judge to make that decision for you, remember that your burden is going to be able to produce enough evidence that suggests how the child or the children are going to benefit from this move. Because, there’s a rather implicit understanding that the child is going to benefit greatly by having the children … I mean, both parents close by for a lot of reasons, easy access, for one, really, regardless of how tight the relationship is. But, the more involved both parents have been, the more difficult it is for the parents to disrupt that relationship and have people move around. If you’ve got two very active involved parents, you don’t really have a primary parent, the burden’s going to be a little bit higher because you’re really asking the child to accept a diminished role with the other parents in order to move. So if you can’t find some way to preserve that, that’s going to be difficult.

Leigh Sellers:                         [07:21]                       But, one of the things that you’re going to have to prove is what’s the advantage for the relocation in terms of how it’s going to improve the life of the child. So, not how it’s going to improve the life of the parent, but the life of the child. That’s difficult because when you just try to say the schools are better, or there’s more activities, or more museums, that’s very general. You’re going to need to be very specific about your child. For example, if your child is really interested in swimming and you’re around Charlotte, North Carolina, we have some of the most nationally recognized swim coaches on the scene that are here. We’ve had Olympic swimmers train in this area. So to try to prove that some sort of star-studded swimmer is going to do better to go somewhere else, that might be more difficult.

Leigh Sellers:                         [08:09]                       So, you really need to think about that particular child. What are their interests, their needs, their activities? Yes, if you have a child prodigy who’s a musician, moving closer to Carnegie Hall might be really beneficial, but it might not. But whatever it is that you’re saying about that area is more beneficial and is going to improve the life of your child, you need to tailor it to that child or those children, not just general the schools are better, the museums are better, there’s fresher air, less pollution, or those sorts of things. Now, if you’re trying to argue that the air quality is better and you have a severely asthmatic child or somebody who’s been hospitalized and very debilitated by the environment, then you may have a case there to say it’s cleaner, fresher air. But, you really have to think about that.

Leigh Sellers:                         [08:58]                       The court’s also going to look at why is the custodial parent moving. What are their motives? Are they good? Are they true? Are they pure? Are they just angry at the other parent? Are they just trying to distance themselves from that parent, from that parent’s extended family? Are they just trying to put as much distance between themselves and every memory of the marriage? What is it? So basically, they’re looking at whether or not it’s a selfish motivation or is there something kind of pure and non-vengeful about the motivation.

Leigh Sellers:                         [09:30]                       They’re really going to look at the likelihood that if you move and you’re the custodial parent, that you’re going to actually comply with court orders. So if you have a history of being dismissive about letting your child see your ex or the other parent, or you’ve already been held in contempt for not following a judge’s ruling, especially if there’s already an existing court custody order, you’re going to have more of an uphill battle because they’re really looking for proof that you take orders of the court seriously and that you will comply. So if a court says that the child’s going to be made available, you will make the child available. If the order says that you’re going to do something, that you will in fact do it.

Leigh Sellers:                         [10:10]                       They’re also going to look, though, at the motives of the secondary parent or the parent that’s fighting the relocation. They’re going to look at their motives. Do they have honest and true motives for doing this or are they just being difficult or vengeful? Is this a parent who’s never really been highly involved in the children’s lives who’s fighting a relocation, but that really is spending very little time with the children when they’re in the same city? Well, they might question what’s the real motive. The children have been here for 10 years and the parent’s been pretty much sidelined, so why now? Why is it suddenly super important that the children be close? So, they’re going to look into that and see whether there’s an honest motive.

Leigh Sellers:                         [10:49]                       But, they’re really going to look and see whether there’s any realistic way to have a schedule of parenting with both parents that can actually be achieved that’s going to preserve and perhaps even improve the relationship between that noncustodial or the non-moving parent and the children. So, you really have to look at how far apart you’re growing. So, the facts are very specific. If you’re going coast to coast, those are some of the most difficult ones because the air travel, and the expense, and just the jet lag, and the difference in time zones can just make it extremely difficult to get children out there for any amount of time but the summer. And it’s real hard to maintain a relationship when you’re only seeing the children in a very concentrated period of time one time a year and you’re not really able to see them more throughout their lives and be more involved in what they’re doing.

Leigh Sellers:                         [11:48]                       So the further away you are or the more remote you are, that’s also going to be difficult. So, they’re really looking for reasonable, realistic proposals and plans that can work. Because otherwise, they just may not think it’s in the child’s best interest to be relocated. And then, that’s going to put it back on the parent. Does that mean you can’t move? No, it doesn’t mean you can’t move. It just means that you may not be able to move with your children. And if you insist on moving, it may mean there’s going to be a change in the custodial relationship, because they’re not going to punish the other parent by taking the children away. If you make that choice, then they’ll certainly not keep you from going. What they’re going to do is change your access. So, you need to be really careful about what you’re offering. Because if what you’re offering isn’t realistic and you lose the case, that may be exactly the parenting time you get back. Because if you thought it was good enough for the other parent, they’re going to assume you will be perfectly satisfied with it yourself.

Leigh Sellers:                         [12:51]                       These are some of the most challenging questions that we have, and it’s heartbreaking. One of the biggest problems is that there’s not a lot of middle ground between going and not going. It feels like a concession or a loss to the parent who doesn’t get to have the children in their daily lives in the same town or city with them. It’s probably some of the most gut-wrenching work that I do. And watching parents wrestle with that on both sides of the formula is really tough.

Leigh Sellers:                         [13:23]                       As I’ve said before, I think most parents really want what’s best for their children. And while they may disagree on exactly what is best for their children, they don’t often disagree that they’re wanting to take steps that will damage their other, you know, the other parent or the other child. And they usually sincerely believe that what they’re trying to do is best, and it’s often just a meeting of the minds. But, there’s a lot of just real soul searching and heartache that goes into them.

Leigh Sellers:                         [13:55]                       I will say that with the technological advances of the time that these questions are a little easier here in 2019 than they were in 1990, with children having all sorts of access to devices and being able to Skype and FaceTime or do other video conferencing with their parents, with being able to text, even just the gaming systems that allow you to be in another state and still play Fortnite or some other game online with your children that involves chatting. You actually can be virtually engaged in an activity with them. The fact that you can live broadcast a recital from using any of the apps on your phone, these abilities to stay connected and engaged with children have really changed the relocation equation a great deal. But, it still requires an excessive amount of generosity on the part of the parent that wants to move.

Leigh Sellers:                         [15:05]                       Now, of course, there are caveats. If we’re dealing with a parent who has never been involved, who has perhaps been imprisoned, who has been struggling with mental health issues or addiction, and has just been sort of sidelined throughout the whole process, if we’re dealing with any domestic violence issues, or harm, or certainly child abuse, or neglect, anything where the person is not really an equal parent or is not equally participating in the raising of the child, that’s a totally different story and you may be able to meet those burdens a little more easily because the nature of just the reality of that child’s life. But for situations where you’re dealing with two loving parents, courts tend to want to make sure the child still keeps two loving parents and is not deprived in that [inaudible [00:16:03] act of one party or the other or the divorce.

Leigh Sellers:                         [16:05]                       So, there are complicated issues. They’re very fact specific. Like I said, in some cases, it’s even more problematic when there’s already a court order that has gone through where a judge has already decided that a particular schedule is best for the children. But if you are thinking about relocating and you’re looking into initial child custody determination, it does you no favors to hold that back and then try to, after you figure you’ve won custody, think you’re going to be able to move. That’s kind of disingenuous, and that usually backfires on people. So if you know that a relocation is something that you’re really going to need to pursue for whatever reason, you need to discuss that with the attorney very early on and see if you can’t just be up front with that and attack that straight on.

Leigh Sellers:                         [16:52]                       But, they’re difficult decisions, and the bottom line is people want to make sure that whatever plan is put in place is going to be able to be complied with by both parents, and it’s going to really work well for the children. The age of the children is a serious consideration because what might work for 6 through 10 doesn’t always work so well for 14 through 17. The more active the children get, the more engaged they get in their own lives and their own communities, the more they get closer to having summer jobs, having yearlong sports events, or being very engaged in school projects that require work over the summer, the more and more difficult these long-distance relationships become and the less helpful it is to take children and ship them off for big blocks of the summer. And that is usually the block of time that the court’s looking at to try to make up for any lack of access during just a regular month. They’re going to look at vacations and breaks from school.

Leigh Sellers:                         [17:55]                       If you’re homeschooling your children, you may have more flexibility. And if the children are very young, you may feel like you have more flexibility. But just remember, over the course of your child’s life, they’re going to grow, and their needs are going to change, and their interests are going to change and development, and this parenting arrangement needs to be set up in a way that can be maintained and also be fluid. So, it’s difficult. But I suggest if you’re facing this issue, that you really spend some time talking to your attorney about it because it’s very serious. And if you don’t put the evidence on properly if you’re in trial, you know you’re going to be stuck with the ruling. So, this is your one shot, usually, to get it right.

Leigh Sellers:                         [18:32]                       So there you have it, another neighborhood of Splitsville explored. There’s still so much to learn here, so I hope you’ll tune in to the next episode. While Splitsville is not a fun place to be, thankfully, it is full of helpful people, valuable resources, and sound advice if you know where to look. See you next time.

Outro:                                       [18:54]                       The insights and views presented in Welcome to Splitsville are for general information purposes only and should not be taken as legal advice for any individual case or situation, nor does tuning into this podcast constitute an attorney-client relationship of any kind. If you’re ready for compassionate and reliable legal guidance on your journey, contact Leigh Sellers and her team at touchstonefamilylaw.com.

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