Relocation, relocation, relocation . . .
North Carolina Family Law Courts Weigh In on Rights of Custodial Parent to Move in North Carolina
Summer is a popular time for people to move, and you may be familiar with the adage “location, location, location,” that is often cited when someone is considering the purchase of a new home. Simply put, the expression means that the location of a residence is a key factor you should take into consideration during your due diligence for a new home.
Often the need, or desire, for a divorced spouse to relocate arises when someone gets remarried or is presented with a new job opportunity. And, while the move may have a disruptive effect on a child’s life, it is often necessary for the financial or emotional wellbeing of the entire family.
But, what must be taken into consideration when a parent who shares custody of a child with a former spouse decides that he or she needs to relocate to a new home? Can the custodial parent pick up and move at will or does the non-custodial parent have a say in the matter. And, does the State of North Carolina have a right to weigh in?
These issues have been litigated many times in our state courts. And, a recent decision from the North Carolina Court of Appeals demonstrates the State’s authority to cancel a custodial parent’s intended relocation based on what the court determines is in the best interest of the child.
We’ve handled many cases involving the rights of custodial parent relocating in our Charlotte, divorce law firm, but in a recent case arising out of Asheville, NC, a mother who shares custody of her son with her ex-husband remarried a man living on the West Coast, and she decided she would like to move with her child to Oregon and start a new life with her new husband. The mother and her ex-husband had anticipated a possible relocation in their separation agreement and included a provision by which neither parent could move outside of North Carolina, or more than 125 miles out of the county, without first getting permission either from the other parent or from the courts. Apparently, the mother could not get the father’s approval of her plans to move to Oregon, so she asked the courts to approve her relocation. The trial court agreed that the mother’s new marriage and intended relocation warranted a change in the parties’ child custody arrangement—but, it did not approve the mother’s intended relocation to the West Coast. In short, the court determined that the relocation would not be in the child’s best interest because he had a loving relationship with his father and an extended family in North Carolina but no extended family in Oregon. The child was exposed to an enriching and stable life in North Carolina that would be diminished in Oregon. And, travel between North Carolna and Oregon for visitation with his father would be unnecessarily difficult and interrupt the child’s school life and social environment. While the mother argued that not being allowed to relocate would put a tremendous strain on her new marriage, the court concluded that the mother’s decision to remarry was made for her own benefit, not for the child’s benefit. The Court of Appeals found no error in the trial court’s reasoning, and the mother lost her appeal.
Despite the outcome of this case, our courts often allow out-of-state relocations by custodial parents. But this case aptly demonstrates that if you share custody of a child with a former spouse and you are considering remarrying or relocating after divorce, you should consult a family law attorney experienced in handling rights of custodial parent cases. To win approval of the court, it is essential that you present to the court how your new marriage and/or relocation will be in the child’s best interest.
About Sodoma Law
Sodoma Law is a family focused, and family driven law firm with two convenient locations in Charlotte, one in North Charlotte and another in the South Charlotte Ballantyne area. Our family law and divorce attorneys work with clients throughout Mecklenburg County and the surrounding area on separation, divorce, child custody, child support and other family law matters. Consistently rated one of the top law firms in the area and a top place to work, Sodoma Law’s attorneys are accessible, collaborative and always put the client first.
 Green v. Kelischek (No. COA 13-981) (May 20, 2014).