Sometimes, for better or for worse, one parent ends up relocating to a completely new area. Partial family relocations can be excruciating, regardless of whether you are the parent leaving or the parent staying behind. It’s no exaggeration to say that relocations can tear families apart.
But they don’t have to. This chapter will provide an overview of how to navigate custody disputes involving relocation. This is a complex topic that we can only touch on here, but for more in-depth information, please check out our book, North Carolina Child Relocation Law.
In this chapter, we’re going to consider:
- why parents might choose to (or have to) relocate,
- how to modify a custody order,
- how to modify a custody agreement,
- what you should do first if you’re relocating, and
- how to co-parent when you don’t live in the same place.
Let’s dive right in to examine some of the reasons you might be reading this chapter.
Why Parents Relocate and What Relocation Means for Custody
Sharing custody and parenting in separate households is already difficult enough: communications, consistency, and decision-making are all harder after a separation. Now imagine that one of those parents is moving 1,000 miles away. You’ve got to find a new place to live, move all of your belongings, enroll your children in a new school system, establish a new work and childcare schedule, and make new friends, and did we mention that you’ve got to actually move?
Stressed out yet? Honestly, who wouldn’t be?
If you’re the parent left behind, try to remember that moving is not always a choice. Jobs and life events sometimes require one parent to move. There are many reasons why a family might need to move, such as these:
- a better job opportunity, especially one offering more pay, reduced hours, or the possibility of future career advancement;
- relationships with extended family, especially if they’re offering financial or childcare assistance;
- better schools, special education resources, or a more stable environment for the child; or
- risks to the parent or child’s safety due to domestic violence.
That said, if you’re the parent considering a move, make sure it’s good for your kids, not just for you. And if you’re escaping domestic violence, make sure you also read the next chapter; we’ll take a look at special considerations in abusive relationships there.
To be clear, this chapter focuses on long-distance moves. If you’re moving an hour away and remaining in the state of North Carolina, you probably don’t need most of the advice in this chapter. Chances are, you can still maintain your existing custody arrangement from an hour or two away. It’ll be more difficult, sure, but it’s entirely possible.
That said, what if you do move a short distance to another state? While most custody orders can still be upheld if a parent moves to, say, an hour away in South Carolina, a move that crosses state lines introduces new concerns. If the parent left behind isn’t satisfied with the arrangement or is angry or vindictive about some perceived slight, that parent can accuse the other of kidnapping. This can result in a court order demanding that the child be returned to the state of North Carolina, and in some cases even an Amber Alert.
Still, when you’re a six-hour drive—or six states—away, spending Tuesday and Thursday evenings and every other weekend with the kids just isn’t logistically feasible.
This is why you’ll hear people talking about whether there’s been a “substantial change in circumstances.” To be viewed as substantial, a change has to affect the child’s well-being. Moving to the next county doesn’t have a big impact on the child’s well-being, whereas moving to the opposite coast does.
How do you actually change your custody agreement, though?
Modifying a Custody Order
If you have a custody order, you are bound by its terms: it’s an official court order that the court can punish you for violating. If you’re moving far away, you must file a motion to modify your custody order. Your judge must hear the motion and rule on a new custody arrangement before you can take the children with you (or before you can move away and leave the children behind).
Before a judge will change a custody order for a relocation, she’s going to want to hear about the effect the move will have on the child. Suppose that a child’s father travels every other week for work. He can’t, realistically, have full custody because he wouldn’t be home with his child half the time. The child’s mother has just been offered a better job with higher pay and fewer hours—but it’s 12 hours away, in her hometown. Her extended family lives nearby, and the schools are terrific. She’s probably going to be able to convince the court that the move would be to the benefit of the child, who will have better financial security, closer relationships with grandparents and other relatives, and a quality education.
Now let’s change a few facts. This time, the father works fairly typical hours and doesn’t travel more than a few days a month. The current family home is just down the street from Grandma’s house, and she can keep the child when Dad does have to travel. Mom still wants to move 12 hours away, but where she’s going, the schools are no better—and maybe even a bit worse—and she won’t have extended family around. This time, the court is still likely to change the custody order, but it won’t be to have the child move with the mother. Staying in a familiar environment sounds better for the child with these facts.
Let’s run through one more variation. This time is just like our first example, except that Mom is only planning to move an hour away. There are still real benefits to moving, and Dad still travels a lot. Under these facts, the court probably won’t change the custody order; everyone will keep visits as they have been, even though they’ll be harder to manage. The child stands to benefit from the move, and there’s no reason—other than convenience—to change the schedule.
The point here is simply that not every change is “substantial” enough that it requires a modification to a court order.
Okay, now that you’ve got a better idea what it takes to modify a court order, let’s consider what you’ll do if you have an agreement instead.
Modifying a Separation or Custody Agreement
When a separation agreement, rather than a court order, specifies custody provisions, you don’t have to file anything with the court. Parents with an agreement have more flexibility in how they change the terms of that agreement. Remember that an agreement is a contract between the parents: however they reached it, it’s between them, not anyone else.
When parents want to modify a custody agreement, they have three options:
- negotiate with the other parent for a change,
- enter or return to mediation to try to reach a new agreement, or
- file a custody action in court.
If both parents can agree on new terms, then they—with or without help from a lawyer—could write an amendment that would change their original agreement. Both of them would need to sign the new agreement in front of a notary before it would be legally binding.
Often, though, it’s too difficult for parents to work through this type of major change by themselves. In that case, they might return to mediation, if they used it before, or enter mediation for the first time. As in reaching an original agreement, mediation has the advantages of allowing parents to retain more control over their arrangement and avoiding the cost (and the long timeline) of a court battle.
What if there’s just no agreement to be had? When parents reach an impasse—whether it’s due to relocation or any other reason—their final option is to file a new custody action in court. This restarts the whole process. As before, litigation is slow, expensive, and outside of either parent’s control, but sometimes it’s the only solution.
This brings us to a serious, difficult question.
But Where Do You Start?
Long-distance moves don’t always—or perhaps ever—unfold smoothly. It would be nice to have six months’ notice that you’re going to have to move, but it just doesn’t happen that way most of the time. When you’re supposed to start a new job halfway across the country in two weeks, what on earth do you do first?
If you have a custody order signed by the judge, whether the judge came up with the terms or whether it was a consent order that the court just signed off on, you have to get it changed before you move. If you don’t, your co-parent could file a motion asking the court to hold you in contempt for violating the order. Remember contempt? Yeah, that’s the one where you could go to jail. Meanwhile, the other parent could gain temporary custody and have the children returned to your home state. There’s no way any of that is going to be beneficial for your child.
Before we go any further, let’s explain the term “home state.” A child’s home state is the state where that child has lived for the last six months. The home state has what’s called jurisdiction over disputes involving custody of the child. Removing a child from his or her home state without permission gives the other parent the right to file a custody action that could result in you being ordered to return the child. These rules exist to keep parents from jumping all over the map with their children and evading the courts.
Don’t give the court any reason to think that you’re rash, impulsive, or self-centered. It is almost always better to file the motion for custody first and have it heard before you move. This shows that you respect the court and the other parent, and it demonstrates that you’re going to act in your child’s best interests.
There is at least one major caveat, though. What if you’re in a violent relationship and you’re legitimately afraid that you or your child could be hurt if you don’t leave now? Or what if you need to leave without telling your violent ex where you’re going? While you’re rolling the dice a little, domestic violence provides one of the few valid bases for moving first and filing later. If your safety or your child’s safety is in jeopardy, moving immediately may be the best option.
In all cases, when you’re deciding what you’re going to do first, take a step back and really look at what you’re considering. Is this move in the best interests of your children? Will they actually benefit, or is this mostly about you? This is a great time to talk with your attorney for an outside perspective and some customized advice.
There’s one factor that can make a move 10 times easier or 10 times harder, and that’s your relationship with the other parent. If you’ve stubbornly resisted everything your co-parent has asked for, you are probably in for a tough ride. If, on the other hand, you’ve been cooperative and reasonable, you might find that this conversation goes a bit more smoothly.
However it unfolds, your child will most likely benefit from having both parents actively engaged in parenting, especially when one parent is suddenly long-distance. Let’s look at some ways to make that at least a little easier.
Tips for Long-Distance Co-Parenting
Whether you’re the parent who’s leaving with the children or the parent being left behind, there are concrete steps you can take to ensure that your children have better relationships with both parents. Start with these tips and look for additional opportunities to stay close with your kids.
Have regular video calls. Technology has made staying in touch much easier than it used to be, so take advantage of it. FaceTime and Skype video calls allow you to see your child while you’re talking. This can lessen the distance between you. If possible, try to schedule regular calls on a predictable schedule so you and your child both have something to look forward to. Do not miss scheduled calls. In between calls, you might keep in touch via texting, if your child has his or her own phone, or over email.
Use an online shared calendar. Online calendars allow families separated by distance to keep up with their kids’ school schedules, sports activities, and special events. If you’re the custodial parent, please do your best to keep your child’s calendar current and complete. If you’re the long-distance parent, keep an eye on the calendar so you know to ask about upcoming or past events. You might also send a handwritten card or a special care package during a tough week.
Ask open-ended questions and pay attention to your child’s answers. During your regular calls, make sure that you’re listening more than talking. Use the activities on your child’s shared calendar as a springboard for questions and conversational topics. Listen when they’re talking. You want to learn what and who is important to your child. Remembering the names of their teachers, friends, and coaches will demonstrate to your child that you care.
Watch the same TV shows or play the same games. If your child has a favorite show, sports team, or online game, see whether you can watch that show or play that game. You may even combine a video call with a televised game, so you can “watch” together as if you were right there in the same room. Or you might have a call afterward to catch up and compare notes.
Help with homework. This is another benefit of modern technology: you can use video call services to help your child with school assignments. See whether you and your co-parent can agree to divide up the week, granting each of you specific “on call” hours for homework questions. Or it might make more sense to assign particular school subjects to each parent; that way, your child will always know to go to mom with math questions or to ask dad about world history.
If you’re the parent who lives with the child, do everything you can to encourage and enable an ongoing relationship with the long-distance parent. Your child needs all the love, support, and encouragement he or she can get. Don’t stand in the way of the other parent having a close relationship with your child. Instead, try to support your co-parent’s efforts to stay connected with his or her child. Do your best to keep your co-parent updated about what’s going on in your child’s life.
At the same time, encourage and enable your child to maintain regular contact with their other parent. Don’t say anything negative about the other parent or try to drive a wedge into your child’s relationship with the other parent. Not only does this harm your child now, but it also has a tendency to backfire over the long term.
With hard work and conscientious efforts, families can stay emotionally close even when they’re physically separated.
But what about those families that shouldn’t stay close? We’ve touched on domestic violence a few times so far in this book; now, let’s examine how physical or emotional abuse can change the way things usually unfold in a custody dispute.
