Separation is often a time of upheaval and uncertainty for children and their parents. The family unit has been split and the children are forced to adjust to living separate lives with each parent. In order to reduce the disruption that children experience, parents will often agree for the children to remain in the same home or geographic area. This is so that they have continuity in their school and extra-curricular activities, and also get to see their friends. Unfortunately, this does not always happen. One source of conflict that we see in custody disputes arises when one parent wants to leave the state.
There are many reasons that we see parents leave the state: to live with their new partner, because of a new employment opportunity, or to be close to extended family members. The underlying dilemma this presents is that one parent wants to leave the state, the other parents does not want to lose proximity with their children, and the kids are caught in the middle.
How Do Courts Treat Out-of-State moves?
Separation agreements and child custody orders will oftentimes have provisions that restrict a custodial parent from moving outside of geographic limits. So if you are the custodial parent of the child with such an order, you cannot automatically pack up the children and leave the state. To do so would be a violation of a court order that is subject to enforcement and sanctions. Instead, these geographic restrictions generally require an agreement with the other parent or approval from the court.
Courts consider the best interest of the children when deciding whether to approve the custodial parent’s move. The parent that wants to move will need to demonstrate a legitimate reason for the move, and that the move is not simply an attempt to punish the other parent or restrict access to the children. The custodial parent and their attorney must also develop and present a workable visitation schedule for the other parent, which also considers how travel costs will be shared.
What if There is No Geographic Restriction?
If the custody agreement or order contains no restriction on where the custodial parent resides with the children, then there is nothing stopping a custodial parent from immediately moving with the children. However, this is problematic on many levels. First, leaving without attempting to work out an agreement with the other parent looks improper and looks petty. Second, when the other parent inevitably seeks temporary orders stopping the move, or seeks a modification of the custody orders, the court will have a pre-conceived belief that you do not intend to maintain the children’s relationship with their non-custodial parent. Third, and most importantly, if moving the child prevents the custody schedule already in place and denies the other party visitation, you will be violating an order of the court and may be held in contempt. Therefore, before you take action on a plan to leave the state with the children, speak with your attorney.
New Direction Family Law
Child custody matters can be incredibly challenging for everyone involved, and no two situations are the same. For twenty years, the attorneys at New Direction Family Law have worked on all manner of family law cases, including separations, divorces, and custody disputes. Our team will use our knowledge and intelligence to analyze your options and provide you with professional, effective guidance. Our office serves Wake, Johnston, Lee, Harnett, Cumberland, Nash, Granville, Franklin, and Durham counties. Call our office today at (919) 719-3470 to schedule an appointment, or reach us at our website.
Sarah J. Hink
New Direction Family Law