Ex-It Strategy
Podcast 45
Hosts/Participants
Elizabeth Stephenson, Sarah Hink, Jen Bordeaux
Elizabeth: Hello everyone. I’m Elizabeth Stephenson with New Direction Family Law.
Sarah: And I’m Sarah Hink, Elizabeth’s law partner and we are so happy to be here with you today.
Elizabeth: We are. We got an interesting topic, I think.
Sarah: Yeah. And very relevant to many of our listeners, I’m sure.
Elizabeth: Right.
Sarah: Given the climate that people can easily move around in our country and the desire to do so, especially now with working, you can work from home.
Elizabeth: Exactly.
Sarah: So the topic today is relocation as it pertains to custody.
Elizabeth: Right. So just a general overview. Sarah, what would you say about that?
Sarah: Well, of course it depends. Like I start with so many things, you know, it depends. If you don’t have a court order and there’s nothing in place, then there’s nothing really preventing you from moving.
Elizabeth: Nothing legally preventing you.
Sarah: Nothing legally preventing you from moving, but, if you have another spouse, this person that’s been in the picture, there’s gonna be problems if you pick up and move without an agreement in place or—
Elizabeth: Correct.
Sarah: Any, I mean, there’s just a lot that can go wrong. And in the eyes of a court, a parent that moves kids out of the state without the agreement of the other participating parent, you’re not gonna look good.
Elizabeth: No, a judge is gonna not be happy with you.
Sarah: Yeah.
Elizabeth: What are some reasons that the court would say, “okay, you can move?”
Sarah: Well, let’s start with the fact you haven’t already done so, and I will make a little caveat. Whenever there’s domestic violence, you pick up and move and you go live with your mom because your, you know, husband or wife, hit you or was violent to you when you were scared, then that’s a different circumstance. Right?
Elizabeth: Right, right, right.
Sarah: There are, you know, laws that protect you in that realm.
Elizabeth: Right. But let’s say I just, I wanna pick up and move because I met someone and they live in Georgia. Let’s say, what a reason to move.
Sarah: It’s not a really good one in and of itself, and the court does look at certain factors, right? They look at the advantages of the relocation, right, in terms of capacity to improve the child’s life. So, is this move to Georgia gonna be beneficial? Are you moving to an area that has really great schools and you currently live in one that has bad schools? Are there other family members there?
Elizabeth: Right. Are you moving? Do you have support? I mean, and other things you can look at like crime in a case. With crime statistics, you know, they pulled them up and said, well, this is certainly not an advantage for this child to move here, and the schools are better. The culture is better. You know, there’s art museums and there’s zoos and all that kind of stuff. So it’s not just about my family being there, you gotta have another reason to do that.
Sarah: Yeah. And they do look at the reasons why the parent wants to move. A boyfriend’s not good enough.
Elizabeth: Correct.
Sarah: But for example, “well, right now I only make 50,000. I don’t receive any spousal support. I have the opportunity to move and make 150,000. Which would be beneficial to me and my children.” Well, that’s different.
Elizabeth: Exactly. You still should not pick up and move. So if somebody comes in and says this is what I wanna do, should, let’s say, let’s recount it. Should I, what would you say?
Sarah: Well, if you have a separation agreement, then you look at the terms of it and see if it covers what you should do in this scenario. A lot of times separation agreements will require parties to mediate before they go file in court.
Elizabeth: Right.
Sarah: So, you know, let’s talk about it. What, what does this look like? What are you asking the custody schedule to be? Is it realistic, this custody schedule that you’re asking for, it to be once you move? Because it’s gonna frustrate it. And if it does frustrate it, right, then you should not move if there’s something in place already.
Elizabeth: Right. And I, and I sort of think that even, let’s say a lot of times I’ll say, if you’re moving 50 miles, let’s say and that, then the week on, week off can’t work because I can’t get ’em to school in the morning because I have to get up at about five o’clock. So it’s not just—
Sarah: Yeah, you gotta be realistic about what it’s gonna look like.
Elizabeth: So it’s not just about moving out of state. It could be moving out of the county, it could still frustrate the terms of what you’ve agreed to in the order.
Sarah: And you gotta slow the process down. You gotta, you know, think about your children and what’s best for them. And make sure that you’re not doing this selfishly for whatever reasons if you’re the one thinking about moving.
Elizabeth: Correct. And sometimes there are good reasons to do that and hopefully you two could work it out in some way, but if not, you’re probably gonna have to seek the court’s assistant to do that.
Sarah: And say that we have all of these factors in your corner and the judge is considering letting you move, maybe dad or mom has problems with alcohol or they haven’t been very present, but they still have some sort of custody time, you know, what’s the likelihood that that custody’s gonna continue?
Elizabeth: Right.
Sarah: So if mom moves out of the state and the judge is considering letting this happen and dad getting like once a month, well, is mom gonna do anything to alienate that one once a month visit?
Elizabeth: Right.
Sarah: Because that matters. So they, they wanna consider, you know, the parent moving, are they gonna participate in this process and follow the court order or are they just trying to get away? Because I know those scenarios where one parent already has the majority of custody and they think because they have the majority, they can move. And that’s not always the case.
Elizabeth: Right. And I’ve had a lot of times the courts will say, “Ma’am, or Sir, you’re welcome to, but the child’s gonna stay here and here’s what the custody schedule is gonna be.
Sarah: Oh, yeah.
Elizabeth: Or, if you remain in Wake County, let’s say, then you’re gonna keep your 50-50, you know, so then it becomes a burden on the parent wanting to move, “I’m gonna lose my child if I do.”
Sarah: Yeah. And I think that’s fair. And it’s happened to me and when I’ve advised clients that if you move, it’s gonna be hard to keep the kids and they didn’t listen to me, then they, the judge tells them, well, you’re gonna have to come back if you want 50-50.
Elizabeth: So let’s say that one parent does pick the kids up and moves without the other parents permission or the court order, what does the parent, who remains, what are their options?
Sarah: Depends where they are in the situation. But there is emergency custody that exists and covers for this, this certain scenario, and it’s looking at whether this person that moved out of the state and took the kids or just left the state, are they fleeing the jurisdiction—
Elizabeth: Right.
Sarah: You know, are they doing this to try to take the kids out of this jurisdiction beyond the reach of the court and without the permission of the other parent? If that’s happening, go to an attorney, you can file as quick as possible, get that in front of a judge, and that judge can make a decision without a hearing based on that point. So then you have an order from the court saying that the kids are to be returned to you, you have to serve the party. So it is frustrating if they move or they just leave and you don’t know where they are. I mean, obviously that’s gonna be a problem. But you’ll get a court order. They can get law enforcement involved if necessary, to find the kids because that is concerning when someone does that, because it could be they did that for mental health issues of their own, like if they’re making rash decisions like that.
Elizabeth: Correct.
Sarah: Concerns for the children.
Elizabeth: Yeah. I mean there are all sorts of things, like you say, every case is different. I’m just thinking about it, because mom got evicted or a parent got evicted, and so they have every other weekend visitation and tell the other parent, you know, “oh, well for the weekend we’re gonna go to the beach.”
Sarah: Right.
Elizabeth: Well, my brain goes, you don’t have a place to live, you have no job. My concern is you’re not going to the beach. You’re gonna take the child somewhere.
Sarah: Yeah. How are you gonna provide for that?
Elizabeth: Correct. Correct.
Sarah: And, you know, who are you gonna have around the children?
Elizabeth: Right.
Sarah: So there’s lots of concerns there and that’s why this is put in place, in a statutory, you know, law and remedy. We have to go after these children when that happens.
Elizabeth: So I would say, unless it’s a domestic violence situation, if you’re considering moving out of the state, moving in such a way that would frustrate the custody schedule that you have now, you need to see an attorney before you do anything.
Sarah: It’s hard. It’s hard to get an order. I tell them to, you know, realistically, the judges don’t like it, right? They’re like, you were here, you have kids together here, co-parenting and made the decision to have children with this person and live here. You cannot just move away and take them.
Elizabeth: Right, and just because you can make more money is not a reason for judges, outstanding alone, to let you move.
Sarah: Right. I had won a case once, allowing mom to have the kids and move to Maryland. Like my God, it was like the biggest win in my life. I was like, how did I do that? Because it wasn’t, I honestly didn’t think the judge would order in our favor because it’s just so hard to get them to do that.
Elizabeth: Right. And that’s a very good point that neither Sarah nor I know, nobody knows what a judge is gonna do. They could do one thing one day, on the sort of same, similar facts. Then you go in front of ’em the next day, and you get exactly the opposite.
Sarah: Right. I don’t let the judge know that I don’t think I’m gonna win. (laughing) I always go in there confident. Like, I might not think we’re gonna win, but I’m gonna go in there, I’m gonna damn look like I think we’re gonna win.
Elizabeth: Absolutely. I mean, our job is to advocate for clients.
Sarah: I mean, it’s possible, but it’s hard.
Elizabeth: It’s a hard fight. So if you’re gonna do it, you better absolutely be sure that you wanna do it.
Sarah: Correct. And then you can get multiple states involved. And you know, I’ve had cases where both parties move outta state and it doesn’t, they don’t have an agreement. They have a court order from Washington State per se. One parent moves to Texas, the other one moves to North Carolina and they kind of like work it out. Then all of a sudden, the parent in North Carolina doesn’t want the kids to go over there. Someone has a problem and then it’s just one multi-state mess.
Elizabeth: You gotta start in Washington and work your way back.
Sarah: You might, but if, if everyone moves outta Washington and then nobody has jurisdiction, you can file in North Carolina.
Elizabeth: That’s right. That’s right.
Sarah: I love those little jurisdiction problem cases, but me, just my brain. But the client doesn’t like ’em.
Elizabeth: So let’s say you do move out, you get a court order. If the parent who’s moving, what do they do with that court order from North Carolina if they’re moving to Georgia? Anything?
Sarah: That allows them to?
Elizabeth: Yeah, yeah. Let’s say the court said, “yeah, you can move. Go ahead.”
Sarah: Yeah, you should probably register it in Georgia, the court order.
Elizabeth: Which is just a form filled out to get so you can enforce it.
Sarah: Probably, yeah. Talk to a Georgia attorney.
Elizabeth: Well, we have uniform law, yeah. So you need to contact an attorney, I would say once you get there, not immediately, but yeah.
Sarah: We wouldn’t register it for you.
Elizabeth: Right. So things may be going good now, but what happens if something blows up? Then you’re gonna have to do something and probably contact an attorney in Georgia.
Sarah: Yeah. And also, in cases where someone has moved out of the state and you’ve kind of allowed that to happen, and that could be anywhere from, you know, two weeks they’ve been out of state, or a month, and they’ve been outta state and you knew they were gonna take this long vacation to visit their family, then you start having concerns about them returning her, maybe they said they were gonna return and now you don’t think they’re gonna—it’s a race to the courthouse at that point.
Elizabeth: Exactly.
Sarah: Because they could go and file in whatever state, even though they’ve only only been there a month, that state might not have jurisdiction, but them filing there first is gonna create a headache.
Elizabeth: Right, right.
Sarah: So, because you’re gonna have to at least go up there and fight it and say, “Hey judge, they don’t live in this state. They’ve been in North Carolina. So if that’s starting to happen, the quicker you need to act just to get something in place. And that happened to me once, I was like, “Well let’s just go.” I pushed this client, I was like, “You gotta file in North Carolina.” And he did thankfully, because she filed like the next day in some other state.
Elizabeth: And I think your scenario was, they said they’re gone for an extended vacation, but let’s say they, they’re gone, I mean gone a month. You know, a lot of times the court goes, “Ma’am, this is not an emergency because obviously you waited a month, so why did you wait so long?”
Sarah: That emergency relief is gone at that point.
Elizabeth: Right. So if you think that something has happened, you need to pick up the phone, call an attorney. I would say sooner rather than later.
Sarah: And people play that, that vacation card. “I just need to get away for a little bit.” But the next thing you know, the kids are enrolled in school. Then they’re like, “What in the world happened? I didn’t agree to this.”
Elizabeth: So the best advice is it’s a complicated issue. Even if you’re all in agreement, it still can be sort of complicated. Then you need an attorney involved if there’s multi-state things going on.
Sarah: Right. If you’re in the process of negotiating a separation agreement, consider the possibility that one person might wanna move outta state, and what you can go ahead and agree to and put in place in your separation agreement. That will kind of solve some problems in the future, or at least require certain things to happen before that person can move or go ahead and say that, “Hey, if anyone does move 30 miles away from where the kids are currently enrolled in school, they stay here, and you have to find a new custody schedule.
Elizabeth: Right. If y’all can’t agree, then the court’s gonna figure that out.
Sarah: Whatever you can do to brainstorm beforehand and plan for it, it’ll give you an opportunity to stay outta the court in the future.
Elizabeth: Yeah. Anything you can do to avoid that is a really good thing. Yes, yes, yes. Jen, any questions from you?
Jen: No, no, I don’t have any kids.
Sarah: Yeah. I mean, it’s tough. And I think a lot of people get to the point where, you know, they’re separated, they’re divorced, they’re feeling great, they feel, you know, energized as a individual and they want, they wanna move, they want a new life, they wanna do something, and then is a little selfish because you do have kids with someone else. And that does not only hurt the other parent, but you’re hurting your kids by removing them from access to this other parent that is giving them love.
Elizabeth: Especially if they’ve been on a joint 50-50 custody schedule. That can be difficult.
Sarah: Or even like every other weekend.
Elizabeth: It’s just the reality of the world. Everybody moves, and if you’re going to do it, you have to put your children’s interest first and figure out how to make that work.
Sarah: Yeah. Or really like where you live when you have a kid, like with someone, you know what I mean?
Elizabeth: Right. Or you move, or let’s say you did move, you got a new job and you go, “This really sucks. I hate this.” But now you’ve uprooted your children, you know? And then, “Oh, well I got an offer on this day.” So you’ve really gotta think it through long term. I think is the best advice.
Sarah: It’s sad when clients come and they’re like, “You know, I moved here for his job, and I don’t have any family and friends here, and now we’re separated, and I would love to move back with my family in Minnesota.” And it’s like, I, I understand that feeling, but you did move here and you laid in the bed with this man.
Sarah: So, and you put seeds. Ugh, I dunno. (laughing) Planted roots in the ground. You put roots in the ground. Plant seeds and the kids are enrolled in school here.
Elizabeth: Oh, they have friends.
Sarah: Oh my gosh. Yeah. I had a case where dad was gonna stay in Raleigh, mom was gonna move to the mountains, and the judge pretty much said that she thought the best case scenario would be the kids moving to the mountain town. What? Well, Boone, okay. It’s not a town, it’s a city. Anyways, the schools were better. Those schools they would go to and like the opportunity, but she said instead like, the kids have friends here and I’m not gonna take them away from that. And that was like the final decision was based just on that, that the relationship that the children have.
Elizabeth: Well you also have to think about their age and their stage of development, too. You know, like really young kids that aren’t in school yet are easier, maybe not such a big deal, but you got middle schoolers and high schoolers…yeah…you ain’t going. No.
Sarah: Especially girls, you’re going nowhere.
Elizabeth: Probably more than likely.
Sarah: I’m sure it’s hard for boys too, but I don’t know. I was just thinking that it’d be harder for girls to make new friends. I don’t know.
Jen: I’ve actually recanted my statement. I do have a question. Not as drastic as relocation. Maybe four hours away or three hours away. Right. Or to a different state. But again, just going back to a recent form we had filled out online and it was 30 minutes up the road, but it switched counties and now the mom wanted to enroll the children in a different school and dad was like, “Hell no!” You know? So how do you guys address that? I mean, I know there’s a lot of factors. So let’s say that there is a custody order in place. Maybe it doesn’t specifically address that issue. Like what, how do you guys navigate that?
Sarah: We have to go to court to have the judge decide the school decision.
Elizabeth: Well, unless, if they have joint custody, you know, that becomes an issue. But you’re gonna have to have a court involved, I believe. So even if, and let’s say you didn’t wanna change their school, you’re 30 minutes or 45 minutes away now, how are you gonna get them to their football practice? How are you gonna get ’em to their dance? There are all sorts of things to consider and putting those children in a car for two hours a day, one way or the other. Think about, y’all gotta think about these things. People are
Sarah: People are selfish. Like I said, they just are.
Elizabeth: I think it’s just human nature. Yeah. I mean, you know.
Sarah: It’s not good for your kids. And so yeah, you move, you want them to go to school in your district. It’s closer to you and easier for you and harder for the other parents.
Elizabeth: I was reading today, you know, because rents are going up, especially in Wake County, there’s an article about this woman who moved to Cumberland County. Let’s say you even moved to Sanford because rents are cheaper. “He’s not paying enough child support, and I don’t get any alimony.” I mean, I understand where you’re coming from, but that’s probably not a basis that the court is gonna allow you.
Sarah: No. And especially if your case is in Wake County. I mean, these judges, they work and live in Wake County. They think Wake County is the best. Why would they let your kids go to a different county?
Elizabeth: Right. A lot of people that I talk to, once you sit down and you have these conversations with, they’re not happy about it a lot of the time, but they understand it.
Sarah: You know, it’s that ball and chain thing, you know—
Elizabeth: Carrot and horse. (Laughing)
Sarah: No. It’s like you’re just tied. You’re forever tied to this other person.
Elizabeth: Oh, oh, no I completely get that.
Sarah: Horse and chain?
Elizabeth: Horse carrot horse and carrot. I thought you were talking about that.
Sarah: No ball and chain, the ex. Okay. Get it. They’re, if you have kids with them, you’re just like forever taking that.
Elizabeth: What you have to tell people who think they’re gonna get divorced, you are always gonna be in this person’s life because you got weddings, you’ve got graduations, you’ve got you’re always tied to the other person, right? Absolutely.
Sarah: I know, I’m like, what decisions did I make in this past year? (laughing)
Jen: Which always just lends itself to make sure you can talk to an attorney and you’ve got a sound court order, because things are great until they’re not when you’re agreeing verbally. And I literally just said today in, in a meeting, I was like, listen, we get calls from folks that have either the other parent has made some stupid choices, or we get calls from the person that’s actually made stupid choices. We can’t fix stupid, but we can take it to court or we can defend it in court.
Elizabeth: Right, right, right.
Sarah: Exactly. Right.
Everyone: And ain’t that some shit.