Child Custody and Relocation in North Carolina

Overview of North Carolina Child Custody Laws

Custody arrangements are as varied as the families they involve. The parent with primary "physical custody" lives with the child. However, parents can share physical custody. With joint physical custody, parents will adopt a schedule that gives each parent 50 percent time with the child. Or parents can share custody, but split it in some other way, for example where one parent has the child 4 days per week while the other parent has 3 days each week.

"Legal custody" is the right to make decisions on a child's behalf. In many cases, even where one parent has sole physical custody, parents often share legal custody. When the parents can't agree on an issue such as where a child should go to school, the custodial parent (parent with primary physical custody) generally has the final say.

Numerous factors come into play when a court decides custody, but a child's best interests are always central to any custody decision. To help assess a child's best interests, a judge will look at various factors, including:

• each parent's physical and mental health
• each parent's stability
• the child's relationship with each parent and siblings
• the child's physical and mental health
• each parent's employability
• any history of domestic violence, and
• the child's adjustment to their present school and community.

A custodial parent may have an advantage in a relocation case because custody can't be changed unless it's in a child's best interests.

Will a Judge Modify Custody if One Parent Relocates?

Under North Carolina law, once a court has established custody, a parent can't modify the custody order unless: (1) there has been a substantial change in circumstances affecting the child's well-being; and (2) a change in custody would serve the child's best interests.

One parent's remarriage or relocation doesn't necessarily constitute a substantial change in circumstances. Specifically, in one North Carolina case, a father sought to change custody based on his ex's remarriage and proposed relocation to Maryland. Although the trial court granted his request, the higher court refused to change custody because the father hadn't demonstrated a change in circumstances. To justify a change in circumstances, the non-moving parent must show that a move will adversely affect the child's well-being. If a change in circumstances exists, a judge will consider whether a change in custody would serve a child's best interests.

How Will a Judge Decide a Relocation Case?

When a parent announces their plans to move, the non-moving parent can file an objection to the relocation or a motion to modify custody. In most cases, a judge will review the motion and schedule a hearing to hear additional evidence for the relocation and reasons for adjusting custody. You will likely need to testify at a relocation hearing. It's also helpful to bring witnesses, such as family friends, a child's teacher, a babysitter, and any other caregivers that can offer testimony in support of your case.

In reviewing whether a change in custody is appropriate based on one parent's relocation, a judge will review the following factors:

• the advantages of the relocation, including quality of life and available educational opportunities
• the parent's reasons for the move
• whether the planned move is in good faith
• how the relocation may interfere with the other parent's visitation
• how a realistic visitation schedule can be established with the non-moving parent
• the child's adjustment to the current home and community
• the likelihood that the custodial parent will comply with visitation orders, and
• any other factor the court deems relevant.

One North Carolina case illustrates how carefully courts must consider the child's well-being when it comes to a relocation. In this instance, the child's mother (and custodial parent) moved to Atlanta, Georgia. After the move, the child's father opposed the relocation and sought joint custody based on the mother's unstable employment, the child's poor grades, frequent school tardiness, and the mother's inadequate supervision of homework. Based on these factors and the notion that the child's best interests would be served by having frequent visits with the father, the court granted joint custody to the parents, which required the child to travel to North Carolina to see her Dad.

A few years later, when the child's father moved to Hawaii, the trial court wrongly transferred sole custody to him. A higher court struck down this decision because the trial court had only considered one factor—whether the father had sufficient space for his daughter to live with him in Hawaii. Because the court failed to consider any of the above factors or how a move would affect the child's well-being, a change in custody was inappropriate. Although parents have the right to travel and move freely for work, those rights hang in careful balance with a child's best interests.