Let’s take a look at the story of Sally and Sam. Sam is career military. The family moved to Camp Lejeune in North Carolina 10 years ago. Sally has stayed in North Carolina because Sam has been deployed so many times that the military hasn’t required her to move. Both Sally and Sam are originally from Arkansas. They have two children, ages seven and nine.
Sadly, the time apart during deployments has been too much. Sally and Sam are now getting a divorce. They don’t hate each other; they just grew apart. Sally has never liked North Carolina, and she wants to move back to Arkansas with the children.
Unfortunately, Sam has to stay in North Carolina for 10 more years to complete his service and obtain full retirement benefits. He’s never helped much with the children or the household because he is always gone.
Sally thinks it would be so nice to be close to extended family in Arkansas and finally have some help. Will a judge let her move home?
Let’s examine a few scenarios. In all of these, we’re assuming that Sam objects to the move, thus requiring a court hearing.
Neither Parent Has Family in the Current State
Neither Sally nor Sam has family in North Carolina. All of their family members live in Arkansas. Their children know both of their extended families and have seen both sides of the family regularly. Both sides of the family have visited North Carolina several times, and the children have spent time in Arkansas on numerous occasions.
Sam will continue to be deployed for several months at a time for at least three more years. That Sam will be away for months at a time may make a difference, and a judge may allow Sally to move back to Arkansas to be close to her family.
However, if the children are actively involved in their school and community and appear to be happy and well-adjusted in North Carolina, a judge might determine that uprooting the children is not what is best for them.
Let’s change the scenario. Suppose Sam has been promoted. He will no longer be deployed and will work normal hours. He can be around in a way he has never been before and wants to help with the children daily. This could very well make a difference, and the judge may require the children to stay in North Carolina. The relationship with a parent will always be superior to relationships with other family members.
A Few Family Members Are in the Current State
Here’s another scenario. After Sally had lived in North Carolina for about five years, Sam’s dad passed away. Sam’s mom, now living alone, decided that she would move to the same North Carolina city that Sally lives in. For the past few years, she has helped Sally tremendously with caring for the children. Sam’s sister decided that she too wanted to live near Sally’s family and her mother, so she moved to the same city as well. Sally really likes her a lot, and she is very helpful with the children.
Still, they are not Sally’s family; they are Sam’s. She loves them, but it is not the same as being with her family. Let’s say again that Sam will still be deployed for several months at a time for at least a few more years. Sally would like to move home to be closer to her family. The children know her family and have seen them quite frequently despite the distance.
The problem here is that the kids have established a life in North Carolina that includes close relationships with members of Sam’s family. The court may treat this scenario differently because the children have family connections in North Carolina.
In these scenarios, the paramount question involves what benefits the move provides for the children, not for the parent. What will the children be moving to? What are they leaving behind?
A Recent North Carolina Case Involving a Move for Family
Recently, a North Carolina court addressed the issue of relocating to be closer to family members. In this case, both parents lived in North Carolina, but their remaining family members all lived in New York.
A lawsuit for custody was pending before the court in North Carolina. The dad spent minimal time with the child. His visits were supervised due to his ongoing prescription drug problem. The dad also did not pay regular child support.
The child’s mother lost her job and needed her family’s assistance. She informed the father that she was moving back to New York with their child. They discussed the issue for a few weeks, during which the dad didn’t seem to object to the move. However, on the eve of her move to New York, the dad said he did not want the mother and their child to move.
Despite his objection, the mom moved with the child to New York. The father then filed for a court hearing to resolve child custody.
A few months later, the court held a hearing on the matter. The judge awarded the mother custody of the child and allowed them to remain in New York. The court found that the mom had no nefarious intent when she moved. Moreover, the father was not paying regular child support, and the mom needed her family’s financial and emotional assistance. Further, the dad had spent minimal time with the child even before the move to New York.
Still, the dad didn’t come away empty-handed. The judge awarded him visitation once a month, but only if he paid the transportation costs for those visits.
Now, let’s change the facts a little. Suppose the dad didn’t have a drug problem, spent significant time with the child, and paid child support regularly. Even so, the mom decided to move without the court’s or dad’s permission. As you can imagine, the outcome may very well be different from the case above.
What Tends to Be the Deciding Factor in These Cases?
What actually tips the scale in your favor? It is hard to pinpoint, as all judges have preconceived notions about how to rule in these cases. Your attorney should be familiar with the judges in your jurisdiction, which can guide you as to how your particular facts may play out in court.
Over the past several years, more and more judges have been elected or appointed and assigned to the family law courtroom despite having no background or experience in family law. This makes the process increasingly difficult on clients and attorneys. Navigating the court system with unpredictable judges who have never been involved in family law cases is stressful, to say the least.
The key point to remember in relocation matters is that each case is fact specific, so the outcomes will hinge on the facts of each case. Every family is so unique in its needs that it is impossible to formulate a clear rule to apply in relocation cases.
As with most legal matters, you need the facts on your side, and you need to prove those facts in court. Of course, there may be facts in favor of both sides, so judges have to make tough decisions. Though many new judges lack family law experience, the hope is that they will assess the facts and decide in the best interests of the children.
